Cohabiting partners barred from inheriting property when one dies

Members of Parliament have barred cohabiting partners from inheriting the property of one lover when the other dies.

In passing the Succession Amendment Bill, 2019, male lawmakers ganged up and rejected an amendment that would have allowed a cohabiting spouse to inherit the property of their lover following death.

The Bill, sponsored by Homa Bay Town MP Peter Kaluma, seeks to reorganise family inheritance. It stipulates that only a spouse as defined under the Marriage Act, 2014 qualifies for inheritance.

A spouse in this case means a husband or a wife or wives recognised under the marriage.

Though cohabitation is recognised under the Marriage Act, lawmakers said allowing such people to inherit the properties of the deceased partner would open floodgates for so-called slay queens to sue legally married wives for a share of the properties.

Under the Marriage Act, cohabitation refers to an arrangement in which an unmarried couple live together in a long-term relationship that resembles a marriage.

MPs argued that if a person is serious in any union, that person should be properly married before being allowed to inherit the properties of their deceased partner.

Mr Kaluma sought to introduce another amendment to his Bill that would have allowed couples who have cohabitated for at least three years before the death of one partner to inherit the properties of their partner.

Had the amendments passed, people who didn’t formalise their union but were introduced to both families as living as husband and wife would have been allowed to inherit the properties of the deceased.

“The Bill was passed in the most rigid form. The House rejected my additional amendments, which had sought to create room for persons in legitimate cohabitation to inherit property,” Mr Kaluma regretted.

MPs saw the amendments as a clever way of bringing in secret lovers through the back door and shot them down.

“I oppose these amendments. If you want to marry, please marry and let people know, otherwise your dependents will suffer while courts take forever to settle disputes on how to share your properties,” Minority Leader John Mbadi said.

Nominated MP David Sankok said if one wants to inherit the property of the deceased, then he or she should strive and formalise the marriage even at the Attorney-General’s chambers.

“If you love someone, go to the Attorney-General’s chamber and get a marriage certificate and if you are loved, be formally married,” he said.

“If you are not formally married, then you are not needed and if someone doesn’t need you while alive, then even in death he doesn’t want you, so keep off his properties.”

Suba North MP Millie Odhiambo, however, said the House missed the opportunity to pass the important amendment as she emphasised that cohabitation is a form of marriage legally accepted by the Constitution.

“If you have stayed with a man for three years, then you are not selling mangoes, you are actually married. We have missed an important amendment because of excitement,” she said.

The Bill is seen as one way MPs are seeking to block and lock out mistresses from claiming family estates upon the death of a spouse.

Several mistresses and children sired out of wedlock have previously petitioned courts demanding to be enjoined in family inheritance.

The Bill seeks to provide clarity on who a dependent of the deceased person is. It provides stronger protection to the spouse, children and extended family of a deceased person in succession matters.

It also seeks to limit the dependents entitled to inherit the property of a spouse and who qualifies as a child of the deceased — whether or not maintained by the deceased before death.

The list will also include the deceased’s parents, grandparents, grandchildren, stepchildren, children that the deceased had taken into his family as his own, brothers and sisters, as well as half-brothers being maintained by the deceased before death.