I’m a widow seeking to remarry, but in-laws demand I forfeit matrimonial property…

Hi Vivian,

I lost my husband seven years ago in a road accident. He left me with two acres of land, our matrimonial home and shares in two tea companies. We were, however, not blessed with children. I recently informed my in-laws that I wish to remarry. They instead threatened to evict me from the matrimonial home, saying Kenya’s succession laws do not allow me to inherit twice and, therefore, should I choose to remarry, my late husband’s estate will remain with them. What is succession and what should I do?

Margaret Wamaitha,
Nyeri

Dear Margaret,

Succession is the transfer or redistribution of the property of the deceased to the person(s) entitled, either by will or by operation of law.
The law of succession is concerned with the legal consequences flowing from death onto the deceased person’s property. This  depends on whether the person died testate (having made a will) or intestate (not having made a will).

The rules and principles relating to wills and the procedures for distribution of the deceased’s estate in Kenya are grounded in the Law of Succession Act.

From a historical perspective, this Act came into force in 1981 and was drafted with heavy reliance on the 1963 Constitution (now repealed) and the social orientation at the time. However, the promulgation of the 2010 Constitution brought about key legal provisions, particularly on matters of human rights. The Constitution emphasises equal protection of both men and women.

Your in-laws cannot evict you for the following legal grounds. One, you have the right to life interest, which refers to the legal interest of a surviving spouse in the net estate of the deceased spouse in the course of the surviving spouse’s lifetime.

A surviving spouse can sell any property if it is necessary for his or her own maintenance during the period of the life interest. The sale of immovable property is, however, subject to the consent of the court.

Two, the powers and implications of a life interest are mutually enjoyed by both spouses. However, the exception is that the widow loses this interest in the event of remarriage.

The case does not apply to a widower. This has been subject to controversies and legal interpretation, but a breakthrough was reached in the High Court in Meru on September, 29, 2022, when this provision was declared unconstitutional.

The case filed by human rights organisations asked the court to direct that the widower maintain the life interest even upon remarriage. The court concluded that the Succession Act must be interpreted in a manner that gives effect to the equality of women and men with regard to protections and benefits.

Further, women and men, male and female children, married and unmarried, shall have equal protection and rights on administration and succession of estates of deceased persons under the Act.

Vivian

The writer is an Advocate of the High Court of Kenya and award-winning Civil Society lawyer. [email protected]