Can Widows Inherit from Their Parents-In-Law? in kenya

Following our recent publication, WKA Newsletter Edition #10 ‘Divorce by Mutual Consent in Kenya – Marriage (Amendment) Bill, 2023,’ we received a flurry of questions from you, our esteemed readers. One of the most common questions was, ‘Can a widow inherit from her parents-in-law?’ We found it important to address this pertinent issue.

In Kenya, there are two forms of succession: testate and intestate succession.

Testate Succession

Testate succession occurs when a person makes arrangements to ensure that upon death, their property passes to the person of their choice. These arrangements are made through a valid and enforceable will.

Intestate Succession

Intestate succession occurs under the following situations as provided under Section 34 of the Law of Succession Act:

1. A person dies without making a will.
2. Upon their death, the person’s will is invalidated or revoked.
3. The person fails to revive their earlier revoked will or make another will.

In most instances, a majority of Kenyans are not keen to write their wills, and hence they die intestate. This is evidenced by the large number of succession cases in courts where family members fight over inheritance. These cases drag on for years before the deceased person’s property is finally allocated to their rightful dependents.

Unfortunately, the most affected dependents are widows (mothers) who have to cater for their children’s needs while battling their in-laws in court to get a share of their spouse’s estate.

Recent Court Ruling

Recently, Justice William Musyoka tackled this issue in the case of Re Estate of Francis Andachila Luta (Deceased) (Succession Cause 875 of 2012) [2022], where the High Court declared that daughters-in-law are not entitled to a portion of their deceased parents-in-law’s estate in cases of intestacy, whether under the Law of Succession Act or customary law. The Honorable Justice stated:

“The protestor is not a child of the deceased. She is, therefore, not entitled to anything out of the estate of the deceased herein. She is a daughter-in-law of the deceased, as she was married to his late son, Henry Lisansa. She has not come out clearly to say who she represents in these proceedings, whether it is her children, the grandchildren of the deceased, or whether she represents the estate of her late husband, Henry Lisansa. She cannot speak for their children, because the said children are entitled to direct access to the estate, vide section 41 of the Law of Succession Act. If she purports to be pursuing the interest due to her late husband, then she will require to take out letters of administration in the estate of her late husband, in order to have authority to claim his stake in the estate…”

This means that if you are a married woman and your husband passes on, you cannot inherit from your parents-in-law if they die intestate. As a daughter-in-law, you will not be considered a dependent within the meaning of Section 29 of the Law of Succession Act. Note that these provisions also apply to widowers.

Rights of a Surviving Spouse in Intestacy

A surviving spouse is entitled to:

1. A life interest on the whole of the residue of the net estate. The ultimate destination of this property is to the deceased’s children.
2. The life interest of the surviving widow terminates upon her remarriage.

However, the case of Ripples International v Attorney General & another; FIDA (Interested Party) (Constitutional Petition E017 of 2021) [2022] introduced new developments in the interpretation of Sections 35, 36, and 39 of the Law of Succession Act. The Court declared Sections 35(1)(b), 36(1)(b), and 39(1)(a)(b) unconstitutional on grounds of gender inequality and must be interpreted in a manner that gives effect to the equality of women and men. This means that if a widower remarries, his life interest will also terminate just like that of a widow who remarries.

We hope this information helps answer your questions and understand the interesting developments in the Law of Succession Act, Cap 160. Please note that the contents of this newsletter are intended to provide a general guide to the subject matter and should not be relied upon without legal advice.

For further information or legal assistance on compliance or any other legal issue, kindly contact us at info@wka.co.ke, visit www.wka.co.ke, or call +254 798 03 580. Our Nairobi Hub is located at Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.