PARTITION IN LIFE AND IN DEATH: INTESTATE SUCCESSION AFTER THE MATRIMONIAL PROPERTY ACT, 2013

Abstract

Kenya’s law on intestate succession is out of step with the 2010 Constitution and with recent reforms in family law. This article interrogates the logical inconsistency between the intestacy provisions of the Law of Succession Act (LSA) of 1981 and the Matrimonial Property Act (MPA) of 2013. While the MPA places great emphasis on a spouse’s contribution as the basis for entitlement, the LSA leaves no room for ring-fencing a spouse’s contribution from the intestate estate. A surviving spouse’s property rights, specifically the widow’s, are compromised further by the LSA’s over-inclusive definition of a widow under section 3(5) which opens up the intestate estate to rival claims without requiring any proof of contribution. Section 40 which deals with distribution of an intestate estate in polygamous families disregards spousal contribution by ranking widows as equal numerical units with all children of the deceased. This article makes proposals toward synergy between the two areas of law, arguing that otherwise the disconnect between them fails to accord full protection to spouses’ (especially widows’) rights to property during marriage and at its termination.