UNDERSTANDING INTESTATE SUCCESSION IN KENYA: WHAT HAPPENS WHEN THERE IS NOW WILL?

 When a person dies without leaving a valid will, they are said to have died intestate. In Kenya, intestate succession is governed by the Law of Succession Act, which outlines how the deceased’s estate should be distributed among surviving relatives. Understanding how this process works is essential, especially in a country where many people pass away without formalizing their wishes in a will. In this post, I’ll break down what intestate succession really means, then take a closer look at how succession is handled in monogamous unions. 

In Kenya, the law only accounts for the spouse(s) and blood relatives of the deceased person, with the children of the deceased being given priority over all other blood relatives. Additionally, both monogamous and polygamous marriages are allowed In Kenya. This is found under Section 2,3 and 6 of the Marriage Act 2014. Therefore, the law of succession has also provided for both settings, if the deceased died intestate. 

Children who are adopted with valid adoption certificates and children born out of wedlock are also equally catered for in the Law of Succession. 

SUCCESSION IN MONOGAMOUS MARRIAGES 

• IF THE DECEASED DIED LEAVING ONE SURVIVING SPOUSE AND CHILD OR CHILDREN 

Where a person dies leaving behind a spouse and children, the surviving spouse is entitled to keep all personal and household items, receive 20% of the remaining estate, and hold a life interest in the rest. This means they can benefit from the property during their lifetime, but full ownership stays reserved for the children. For instance, is a husband dies intestate and leaves behind a wife and children, the wife is granted a life interest in the whole residue of the estate. This means that she can live in the family home, use other assets, and receive any income generated by the estate during her lifetime. However, she cannot sell or give away the assets. The life interest ends if the spouse remarries or passes away, at which point the property goes to the children. During this period, the spouse can choose to gift part or all of the estate to the children. If a child feels this power is being misused or withheld unfairly, they can petition the court for their rightful share. When such an application is made, the court weighs several factors, including the value of the estate, the financial needs of both parties, past gifts from the deceased, the applicant's behavior, and the situation of other beneficiaries. In the end, any remaining estate goes to the children once the life interest ends, factoring in any previous gifts or court decisions.

• IF THE DECEASED LEAVES BEHIND NO SPOUSE BUT ONE CHILD OR MULTIPLE CHILDREN. 

 If the deceased is survived by a child or children but no spouse, the Law of Succession Act, specifically Sections 38, 41, and 42, states that the estate should go entirely to the child if there is only one. Where there are multiple children, the estate is to be shared equally among them.

• IF THE DECEASED HAS LEFT NO SURVIVING CHILD OR SPOUSE 

 When someone dies without a spouse or children, their estate is distributed to their relatives in a specific order, as outlined in Section 39 of the Law of Succession Act:

• The estate first goes to the deceased’s father. If he is not alive, it then passes to the mother.
• If both parents are deceased, the estate is shared equally among the deceased’s siblings. If any siblings have passed away, their children (the nieces and nephews) inherit their share
•  If there are no full siblings or their descendants, the estate goes to half-siblings and the children of any deceased half-siblings.
• In the absence of these relatives, the estate is passed on to the next closest blood relatives.
• If no qualifying relatives can be found, the estate is taken over by the state and paid into the Consolidated Fund.

Intestate succession can quickly become complicated, especially when there’s no will to guide the process. However, the Law of Succession Act provides a clear structure for how the estate should be distributed, ensuring that family members are provided for in a fair and orderly manner. Whether the deceased leaves behind a spouse, children, or extended family, understanding these legal provisions can help avoid conflict and confusion during an already difficult time.

In the final part of this 4-part series, we’ll explore how intestate succession works in polygamous marriages, a scenario with its own unique set of rules and challenges. Stay tuned!

 

 

 

 

 Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES

CR Advocates LLP. (2024, September 6). Understanding intestate succession in Kenya. 

 Gathirwa, A. (2024, June 4). Intestate succession in Kenya: A guide to the rules and considerations for estate distribution. MMS Advocates.