A well-drafted Will protects widows as it reduces reliance on the default rules set out in the Law of Succession Act.
When a husband dies, his widow is left to grieve while also drowning in paperwork she barely understands. In the middle of that confusion comes a harsh reality: if she ever chooses to remarry, she risks losing the very property her husband left behind.
Widows in Kenya have lived with this painful choice; stay single to keep their inherited wealth, or remarry and watch it all disappear.
For decades, Kenya’s Law of Succession Act reinforced this fear, binding widows to a ‘life interest’ in their late husband’s estate that would vanish if they remarried. Men faced no such restriction.
Critics are now calling the rule unfair. This system has turned inheritance into a tool of control, tethering widows to their deceased spouse’s family and property and victimising them in the name of culture and tradition.
However, lawyers say a widow doesn’t have to lose the property she inherits. The key is knowing your rights and taking steps to protect them.
In 2021, a landmark ruling in Ripples International vs Attorney General & Another (2022) marked a turning point. Supported by the Federation of Women Lawyers (Fida Kenya), the case challenged Sections 35(1)(b) and 36(1)(b) of the Succession Act, which deprived widows of inheritance rights upon remarriage. The High Court ruled that these provisions were unconstitutional and that inheritance should be interpreted to fully promote equality between men and women.
“Equal rights exist for both men and women to acquire new marital rights, either upon the dissolution of the first marriage or the death of a spouse. This change of status should not deprive a widow of her inheritance rights acquired and guaranteed during the first marriage,” ruled Justice Reuben Nyakundi.
He noted that many women are still afraid to claim their rights because of Kenya’s patriarchal culture. The court observed that many families try to keep property within the male members of the family.
According to the judge, the drafters of the Law of Succession Act must address this issue because it concerns human rights and equality.
Kenya’s succession law ties widows’ inheritance to marital status, a move legal experts call discriminatory.
Legal ambiguity
Dr Harriet Njoki Mboce, HSC Advocate and Partner at Njoki Mboce & Company Advocates, explains that, legally, a widow should not automatically lose her inheritance simply because she remarries.
“Historically, Section 35 of the Law of Succession Act (Kenya) stated that a widow's 'life interest' in her deceased husband's estate would end if she remarried. However, the current legal direction is that automatic disinheritance due to remarriage is discriminatory and constitutionally questionable.”
“That said, unless Parliament formally amends the statute, there can still be legal ambiguity, meaning outcomes may depend on how courts interpret each case.”
However, even with constitutional protections under Article 27, widows can still lose property in practice. The lawyer attributes this to a mix of factors, particularly customary norms and social pressure.
“Article 27 of the Constitution of Kenya (2010) guarantees equality, but in practice. This includes customary law traditions in many communities that still prioritise male lineage in inheritance.”
A lack of awareness also leaves widows vulnerable because many of them do not know their rights or how to enforce them. Furthermore, gaps in enforcement, such as slow, costly and intimidating court processes, coupled with family pressure and intimidation, often deter widows from seeking redress.
According to Dr Njoki, the law may appear progressive on paper, but social and cultural realities mostly override it in practice.
She also explains the concept of 'life interest', a provision that often leaves widows at risk.
“A ‘life interest’ means the widow can use and benefit from the property during her lifetime, but she does not fully own it and cannot dispose of it freely.”
Under the Law of Succession Act, this interest ends if she remarries. This creates a vulnerability for widows whose security was conditional, forcing them to choose between remarriage and economic survival.
In most cases, if she remarries, the property reverts to her late husband's family or the children. Consequently, disputes may arise between the widow and the deceased husband’s family concerning control of the land and distribution of assets in the absence of a will, or there might be suspicion and hostility towards the widow.
Kenya's complex succession laws often leave widows vulnerable to property grabbing and disinheritance.
Petition the court
Dr Njoki notes that these conflicts can escalate to eviction, the subdivision of land without consent or the exclusion of the widow from succession proceedings. However, she says that widows can petition the court and invoke constitutional protection against discrimination under Article 27, and seek injunctions to prevent eviction or interference. In extreme cases, they can also pursue criminal remedies.
Legally, remarriage should not affect inheritance rights since this would constitute discrimination based on marital status, which is contrary to the Constitution of Kenya (2010).
In order to protect widows , Dr Njoki stresses the importance of proactive planning.
“Couples should write a valid will clearly allocating property; use joint ownership structures so that property passes automatically; document assets; consider spousal agreements; appoint trustworthy executors; and educate family members, in order to reduce future disputes.”
She adds that "a well-drafted will is especially powerful because it reduces reliance on the default rules set out in the Law of Succession Act (Kenya)."
Setting up trusts
Moses Mathini, Head of Private Wealth at Liaison Group, explains that many widows find themselves vulnerable because discussing death and inheritance is taboo. “It’s very common for widows to find themselves in this position, especially in an African context, because it’s considered inappropriate to talk about money, even between spouses,” he says.
Without wills or clear succession plans, widows often discover too late that remarriage can strip them of their property rights.
Even when wills exist, they can sometimes be contested by close family members, including the widow’s in-laws or her children. “When these parties challenge the will in court, the court is bound to either validate or invalidate it. The court cannot redraft your will,” Mathini explains. This leaves widows exposed despite years of shared life and investment.
For windows, finding love again means giving up the wealth their husband left behind.
High-net-worth families avoid this agonising scenario by using trusts. Ideally, assets are placed under the control of trustees, who manage them. Trusts can bypass succession law because ownership is technically held by the trust, not the individual.
“When you use a trust, the beneficiaries will continue to benefit until the trust says otherwise,” notes Mathini, contrasting this with wills that can be challenged and overturned under succession rules. Trusts preserve the privacy, dignity and financial security of all beneficiaries, even if their life circumstances change, such as if the widow remarries.
Also Read: Land, money and lineage: Daughters-in-law speak on abuse, displacement and broken relationships
Push for law amendment
Professor Ruth Aura of Egerton University argues that the restrictions outlined in current laws were never about property management, but about control. “The way the law is crafted, it’s so male-centred, and its foundation is in the world-view of a man. Years ago, women were not considered capable of owning property or making decisions.”
She adds that the law was intended to confine widows to their husbands’ homes, in line with most customary traditions. “By preventing her from remarrying, you’re ensuring that she remains within this gentleman’s sphere of influence. The idea was to exercise control and ensure that, if she did decide to remarry, she wouldn’t benefit.”
Although the High Court declared the provisions unconstitutional, Parliament has yet to amend the law. Prof. Aura notes that most widows are unaware that they can use precedents to challenge succession laws. They don’t realise that the outcome depends on how the courts interpret each case.
“That is why we must urge Parliament to amend the law, even though it has already been deemed unconstitutional by the courts.”
She also points out that the 2022 ruling brings Kenya into line with international instruments such as the Maputo Protocol, which calls for gender equality in marriage and protects widows’ rights. However, cultural attitudes remain resistant to change.
“If rights are universal, then this universality must be reflected in every sphere. We cannot choose what is good for men and then use it to punish women.”
Follow our WhatsApp channel for breaking news updates and more stories like this.
