The Law of Succession (Amendment) Bill, 2023
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Executive
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Remarriage Terminates Life Interest for All Spouses
Under amendments to sections 35 and 36, the life interest of a surviving spouse in the net intestate estate will determine (end) upon remarriage. This ensures equal treatment for both widows and widowers, addressing prior provisions that Kenyan courts found to be gender-discriminatory.
Equal Inheritance Priority for Mothers and Fathers
The Bill amends section 39 of the Act to mandate that when a deceased child's parents are the rightful heirs, the mother and father will inherit the estate in equal shares. If one parent is deceased, the surviving parent inherits the entire portion, removing the statutory priority previously given to fathers.
Expanded Protections for Non-Marital and Adopted Children
The definition of a 'child' under section 3 is updated to explicitly include adopted children and posthumously born children. Additionally, a new section 40(3) is introduced to ensure children whose mothers were not married to the deceased are counted as additional units to secure their equal share of the estate.
Exclusion of Community Land from Succession Act
The Bill repeals sections 32 and 33 of Cap 160. This mechanism effectively excludes community land from the application of the Law of Succession Act, aligning land inheritance with other relevant statutes.
Bill No.
Senate Bills No. 20
Gazette No.
Supplement No. 70
Sponsor
Veronica Maina
Background
The Law of Succession (Amendment) Bill, 2023 aims to reform the Law of Succession Act (Cap 160) to bring it into compliance with Article 53 of the Constitution of Kenya, which guarantees equal care, protection, and parental responsibility for all children regardless of their parents' marital status. It also seeks to eliminate gender-based discrimination in estate administration and distribution that Kenyan courts have previously ruled unconstitutional.
Key Amendments
Section 3: Definitions and Status of Children
- Child Definition: Expanded to include adopted children and children conceived during the deceased's lifetime but born posthumously.
- Intermeddling: Defined as taking possession, disposing of, charging, receiving, distributing, leasing, or using the property of a deceased person without legal authority, as well as ejecting a surviving spouse or child from the matrimonial home.
- Matrimonial Home: Defined as any property owned or leased by one or both spouses and occupied or utilized as their family home.
Sections 32 and 33: Exclusion of Community Land
- Repeals sections 32 and 33 of the principal Act, thereby removing community land from the scope of the Law of Succession Act.
Section 35: Distribution Where Deceased Leaves a Spouse and Children
- Provides that a surviving spouse's life interest in the net intestate estate determines upon remarriage.
- Establishes distribution rules for situations where surviving children include those who are not children of the surviving spouse.
Section 36: Distribution Where Deceased Leaves a Spouse but No Children
- Confirms that a surviving spouse's life interest determines upon remarriage.
- Upon termination of the life interest, the estate property devolves according to a strict order of priority: parents (equally or surviving parent), followed by siblings (and their children), half-siblings (and their children), and then nearest relatives up to the sixth degree of consanguinity.
Section 39: Distribution Where Deceased Leaves No Spouse or Children
- Ensures the net intestate estate devolves to the father and mother in equal shares, or to the surviving parent if one is deceased, eliminating the statutory priority of the father.
Section 40: Distribution in Polygamous Households
- Inserts subsection (3) to guarantee that any surviving child who is not a child of any of the wives of the deceased is considered an additional unit when determining the distribution of the net intestate estate.
New Obligations
- Protection of Matrimonial Homes: Individuals are legally prohibited from ejecting a surviving spouse or child from the matrimonial home. Such actions are now classified under 'intermeddling' and constitute an unlawful dealing with the deceased's estate.
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