By Moffat Atancha, Associate Advocate, MMW Advocates LLP
Imagine this:
Grace Taylor, a 38-year-old mother of two, tragically lost her husband in a road accident. She had been married for 15 years and had worked tirelessly alongside her husband to build their family home and manage their small business. After his passing, Grace became the administrator of the estate and was granted life interest in some of the property meaning she could enjoy the property during her lifetime but could not sell it or pass it on through a will.
Years later, Grace finds love again. But before she walks down the aisle with her new partner, someone whispers, “You’ll lose your rights to your late husband’s estate if you remarry.” Grace is left confused, scared, and unsure whether she must choose between love and her security.
Unfortunately, Grace’s fear wasn’t just folklore, it was the law.
Outdated Laws VS Modern Equality
For years, Kenya’s Law of Succession Act treated widows differently from widowers. Specifically, under Sections 35(1)(b) and 36(1)(b), a widow’s life interest in her late husband’s property was extinguished upon remarriage. Widowers, on the other hand, were not subjected to such restrictions. This legal imbalance not only undermined the dignity of women but also violated their right to equal treatment under the Constitution.
Thankfully, the tide has turned.
In a landmark decision in Constitutional Petition No. E017 of 2021 – Ripples International v Attorney General & Others, the High Court declared these provisions unconstitutional. The court emphasized that Article 27 of the Constitution guarantees equality and freedom from discrimination, and Article 45 affirms equal rights in marriage and its dissolution.
The court rightly held that a widow’s rights to inheritance should not be dependent on whether or not she remarries. In doing so, it aligned succession law with the values of dignity, equality, and fairness enshrined in the 2010 Constitution.
What Does This Mean For Widows?
This ruling brings much-needed clarity and empowerment to women like Grace. Widows are now entitled to:
- Maintain their life interest in their late spouse’s property, even if they remarry.
- Deal with inherited property freely—including the right to transfer, sell, or will it as part of their succession planning.
- Be treated equally with widowers in matters of intestate succession (where a person dies without a will).
In essence, the law now respects both your right to love again and your right to property.