- Bill serves to deny the surviving spouse their right to get into another marriage.
- Amendments should take into consideration any of the personal improvements on the net estate by the surviving spouse who has re- married.
Image: JOHN CHESOLI
A government agency has moved to offer a lifeline to spouses who risk losing inheritance when they remarry.
The National Gender and Equality Commission in its proposals on the Law of Succession (Amendment) Bill, 2020 said changes in the law should provide gender equity in succession matters.
It said the relationship created throughout the life of the marriage is not extinguished with the re-marriage of the surviving spouse.
The proposed law, sponsored by nominated Senator Abshiro Halake, states that once a widow or widower remarries, they lose their life interest in the remainder of the deceased’s net estate—what remains after the personal and household effects.
The commission said some amendments serve to deny the surviving spouse their right to get into another marriage because the consequences are loss of what they have been part of for qualitative and quantitative time.
“Customary laws recognise a woman married in a home as perpetually their wife even if she goes away for any reason. She will always be welcome back because of the value she brought to the home who are the children,” NGEC said in its submissions.
The commission said that aspect of the customary law is accommodated and is therefore not repugnant to justice and morality in any way.
“What about in circumstances where the new marriage may not have anything substantive to offer? Does that surviving spouse and especially the widow become homeless or a delinquent?” it posed.
The commission also brought to question the fact that the subsequent marriage could end.
“What about if the subsequent marriage dissolves, can she be allowed to come back to her original home and/ or what about if her children were to bring her back as allowed by some cultures, will she be a squatter without any rights to anything?” it added.
It noted that daughters who are married and children born out of wedlock are considered beneficiaries but “surviving spouse is considered persona non grata.”
NGEC further wants the proposed amendments to take into consideration any of the personal improvements on the net estate by the surviving spouse who has re- married.
The commission said the children, if minors, should be under the surviving widower or widow and not next of kin.
“If the children are still minors, who holds in their trust the net intestate estate? In this case, it is the surviving widow or widower not the closest kin in degrees of consanguinity (blood relations)".
The commission added that Section 39 (6) of the Substantive Act recognises consanguinity up to the sixth degree in cases where the deceased died intestate (without leaving a will) and left no known spouse or children.
“The principal object of this Bill as stated is to amend the Law of Succession Act to provide for gender equity in succession matters. Equity means the quality of being fair and impartial and the question is whether the proposed amendments fulfill measures to this definition and who stands to benefit from such amendments,” NGEC stated.
The commission said the spouse may not be entitled to the life interest while still married to another spouse but can be entitled to part of the estate.
NGEC added that the issue of marriage of a surviving spouse is handled differently by various communities and may need to be subjected to more conversations around it before arriving at a consensus.
It said the law should not denote punishment to a surviving spouse who wants to re- marry but still retain a sense of belonging to their former family.
“There are instances where the husband had customarily divorced the wife but when he passes on, the family beseeches her to return to bury him and manage the home because they still consider her the lawful wife even if he had married others,” NGEC points outed.
The commission asked that its submissions be accommodated “since the law of succession in Kenya has embraced various aspects of customary law including recognition of children born out of wedlock, polygamous marriages and even embrace of extended family.”
“Even as we consider this conversation we need to put in perspective the plight of widows visited on them by the family of the husband forcing them to get out of that home and re-marry for their own survival or peace,” it added.
-Edited by SKanyara