UNDERSTANDING INTESTATE SUCCESSION PART 2: SUCCESSION IN POLYGAMOUS MARRIAGES

Welcome to the final part of my 4-part blog series on the Law of Succession. In this concluding piece, we delve into how succession operates in polygamous unions under Section 40 of the Law of Succession Act. Understanding these provisions is essential, especially in a society where polygamy remains a legal and recognized form of marriage. 

INTESTATE SUCCESSION IN POLYGAMOUS MARRIAGES 

Section 40 of the Law of Succession Act (LSA) outlines how inheritance is handled when a person in a polygamous marriage passes away. It states that the deceased’s personal and household possessions, along with the remaining estate, should be distributed among the different households. The distribution is done proportionately, based on the number of children in each household, with each child and surviving spouse being considered as one unit within their respective households.

Just like in monogamous unions, each surviving spouse in a polygamous setup is entitled to receive their household’s share of the personal and household effects outright. Additionally, they are granted a life interest in the remainder of the estate, which ceases if they remarry.

The authority to allocate parts of the estate directly to surviving children also applies in polygamous situations, similar to monogamous ones. In both cases, if a child believes that the surviving spouse has unfairly exercised or failed to exercise this authority, they can petition the court to claim their rightful portion of the estate.

When reviewing such a claim, the court considers the same criteria as in monogamous cases. It may choose to award the applicant a portion of the estate's capital and can adjust any previous allocations if necessary. 

Once the surviving spouse dies or remarries, the remainder of the estate is inherited by the surviving child if only one exists, or equally divided among all the surviving children if there are multiple.

INTESTATE SUCCESSION FOR CHILDREN BORN OUT OF WEDLOCK 

The laws of Kenya have made it abundantly clear that children born in and out of wedlock are considered on an equal basis. Any discrimination against children born out of wedlock is unconstitutional. 

This same principle applies in matters of succession. In the case of Re Estate of Joseph Eric Owino (Deceased) [2022] eKLR, the court held as follows; “…for purposes of succession, all children, in spite of the marriage status of their parents are entitled to an inheritance. In the same case, the children of the deceased are supposed to be provided for, whether they were born in or out of wedlock. Failing to provide for the deceased’s children born out of wedlock amounts to discrimination on grounds of the marital status of their parents. 

 

Succession in polygamous unions requires careful attention to ensure fairness across all households. Section 40 of the LSA aims to provide this by recognizing each household as a unit and balancing the rights of surviving spouses and children. With this, we conclude our comprehensive look at the Law of Succession. Thank you for following along this series. I hope it has provided clarity on wills, testate and intestate succession.

Stay tuned for my next blog post, where I’ll introduce you to Alternative Dispute Resolution (ADR) methods.



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

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

Walubengo Tindi, N., & Letaya, G. (2023, July 13). Intestate succession in polygamous settings in Kenya. CM Advocates LLP.







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