Remarried widows have right to late husbands' property

The Bible allows widows to remarry, and for all good reasons.  But does the law allow the woman to remarry comfortably?  When she remarries, is it the end of her right to claim her late husband’s property?

Section 29 of Law of Succession Act, 1981 Chapter 160 of the Laws of Kenya (Revised 2017) identifies a former wife or wives as dependants, entitled to inherit him.

But what if she remarries?

Advocate of the High Court, Mr Johnson Anyasi says a widow cannot be stripped of her right to inheritance by virtue of being married again.

In fact, even married daughters have equal rights to their late father’s property just as the mother, adopted children, step-brothers or sisters, he explains.

“So long as you are the dependant, it doesn’t matter whether you were married off to rich person or not,” he says.

A woman is still considered a dependant if the man died in the process of seeking a divorce.

He explains that until the court grants a decree absolute to confirm dissolution of marriage, either parties are still considered wife and husband, and hence, legible to inherit the estate.

“The law of succession guarantees a widow the right to inherit his properties including shares, matrimonial house, vehicles and money,” he says.

There are instances where a matrimonial house is registered in both names of the spouses, referred to as joint tenancy. In this case, a widow assumes full ownership of the house upon his death, he says.

Life interest

Section 36(c) relating to the deceased leaving behind one surviving spouse with no child or children, however strips the widow the right to life interest upon remarriage.

Mr Anyasi says that although life interest stops once she becomes a wife to another man, her right to inheritance of the late husband’s property remains intact. Life interest entails day-to-day maintenance such as food, housing, clothing or medical attention, explains the advocate of the High Court.

A 2018 Simplified Resource Tool on Inheritance and Related Family Law Practice in Kenya by Family Division of the High Court, points out gender discrimination in the law of succession.

These include maintaining the life interest of the widowers upon remarriage while the widows lose theirs and fathers’ given priority over mothers’ by expressly granting them precedence to inherit a deceased child’s property whenever the late leaves no surviving spouse or children.

Further, it shows the bias in inheritance of property in polygamous marriages. The husband is guaranteed inheritance of full estate when each of his wives dies. But when he dies, his wives have to divide his net estate among themselves and the children.

Unfortunately, the Law of Succession (Amendment) Bill, 2020, further maintains loss of interest for the widows, which the Federation of Women Lawyers-Kenya (Fida-Kenya) have protested.

“Having widower continue with the life interest of the late wife while the widow loses that right, is (encouraging) gender inequality,” says Fida-Kenya Legal Counsel, Ms Vivian Mwende.

“The Amendment should now have both the widows and widowers lose the life interest upon remarriage,” she says.

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