Parliament recently passed into law the Law of Succession (Amendment) Act 2021 (the Amendment Act). The Amendment Act amends several provisions of the Law of Succession Act, Chapter 160 of the Laws of Kenya (the LSA Act).
The Amendment Act intends to harmonize the succession laws in Kenya with the marriage and matrimonial laws.
Key Highlights of the Amendment Act
Some of the key changes introduced by the Amendment Act include defining a spouse, broadening the scope of intermeddling provisions, and defining the regime that would apply to the succession of community land.
Perhaps the most significant amendment was re-defining the meaning of a dependent under the succession laws. The LSA Act defined a dependent to include a "wife or former wife" and the children of the deceased, whether or not they were maintained by the deceased prior to his death. The inclusion of former wives complicated succession matters, as cohabitees and divorced spouses would claim a share in the deceased person’s estate. Additionally, the inclusion of former wives was inconsistent with the Marriage Act, as the Act only recognized unions that had been celebrated per the Act, and it prohibits persons in existing unions from contracting other marriages inconsistent with it.
To cure this inconsistency, the Amendment Act now defines a dependent to include a spouse or spouses and children of the deceased, whether or not they were maintained by the deceased prior to their death. The implication of this definition is that a spouse would have to submit proof of marriage to allow them to inherit where the spouse dies intestate. This amendment will also enable legally married spouses to challenge wills where the deceased spouse fails to provide for them under the will. Further, this amendment clarifies the question of inheritance by male spouses, as the Marriage Act defines a spouse as either a husband or wife.
What does this law mean for you?
Considering that it is only spouses that are legally married that can inherit, it is important for you to ensure that you regularize your marriage. This means that one would be required to ensure that their union falls within the acceptable marriages under the Marriage Act and is registered. This would also mean that all existing unregistered unions would have to be registered to ensure that spouses inherit as per the Law of Succession Act.
What about the children born out of wedlock?
All children, even those born out of wedlock, will be entitled to inherit from the deceased person’s estate.
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