Outdated and unfair: Why customary law can no longer deny married daughters their inheritance
A recent succession case from Makueni County underscores a vital legal precedent: a daughter’s right to inherit is protected by the Constitution, and outdated customs that suggest otherwise have no place in modern succession proceedings.
What you need to know:
- A ruling at the Makindu Law Courts has sent a clear message to families attempting to disinherit daughters based on marital status. By invoking the Constitution and the Law of Succession Act, the court has ruled that being married does not strip a daughter of her legal right to her father’s property, effectively nullifying discriminatory customary practices.
On February 22, 2022, a man filed an application at the Makindu Law Courts in Makueni County, seeking confirmation as the administrator of his late father's estate. In the court documents, he stated that he would hold the entire estate in trust for all the beneficiaries. But when Senior Principal Magistrate Y.A. Shikanda examined the succession records, a glaring omission emerged: one of the deceased's daughters had been excluded from the estate's distribution simply because she was married.
The discovery prompted the court to reaffirm a principle repeatedly upheld by Kenyan courts; that marriage does not extinguish a daughter's right to inherit from her parents.
"There is an unfortunate trend of daughters being disinherited from the property of their deceased parents simply because they are married," Senior Principal Magistrate Shikanda observed. "All children of a deceased person, whether male or female, are entitled to share in the estate of their deceased parents in equal measure. It does not matter that the daughter is married."
Shikanda added that unless a daughter expressly renounces her right to inherit, she remains legally entitled to a share of her parents' estate.
In reaching the decision, the court relied on Article 27 of the Constitution of Kenya, which guarantees equality and freedom from discrimination. Article 27(5) provides that a person shall not discriminate directly or indirectly against another on any of the grounds specified in Article 27(4), including marital status.
The court also cited Section 38 of the Law of Succession Act, which states that if a person dies without a valid will and leaves children but no spouse, the estate shall go to the surviving child if there is only one, or be shared equally among all the children.
The court emphasised that all children have equal inheritance rights regardless of their gender or marital status.
The Senior Principal Magistrate further relied on the High Court decision in In Re Estate of Solomon Ngatia Kariuki (Deceased) [2008], where the court rejected attempts to deny a married daughter her share of her father's estate. In that case, the court held that the Law of Succession Act does not discriminate between male and female children or between married and unmarried daughters when distributing a deceased person's estate.
"All children of the deceased are entitled to stake a claim to the deceased's estate," the court ruled.
It observed that those seeking to disinherit the married daughter were relying on an aspect of old Kikuyu customary law, which traditionally barred married daughters from inheriting their fathers' property. The court noted that such customs, like many others that existed before modern succession laws, were discriminatory against women. It observed that the common justification was that a married daughter would benefit from her husband's family and should therefore give up any claim to her father's estate. However, the court found that this reasoning no longer has legal standing.
"It should, however, be noted that when the Law of Succession Act came into force in 1981, it ousted the application of customary law in inheritance disputes, save for a few narrowly defined exceptions," said Senior Principal Magistrate Shikanda.
The court also cited Section 3 of the Judicature Act, which states that customary law cannot be applied if it is unfair, against public morality, or conflicts with written law. Applying customary rules that deny married daughters inheritance rights would therefore be inconsistent with both the Constitution and the Law of Succession Act, the court said.
In the Makindu succession case, the court directed that the records be amended to include the deceased's daughter as a beneficiary. The only exception, the magistrate said, would be if she voluntarily filed a written renunciation of her right to inherit.
