Marriage, Divorce, Wills and Inheritance: Kenya
Jointly Owned Matrimonial Property and Inheritance
Under Kenyan property and succession laws, spouses can co-own property acquired together. Such property may be owned in the name of one or both spouses. Depending on the nature of co-ownership (‘joint’ or ‘in common’), upon death of one spouse, the deceased spouse’s share in the co-owned assets may either be transmitted automatically to one spouse such that the laws of inheritance will not apply to these assets meaning that rules of intestacy will not be applicable and neither can the dead spouse, while still alive, have bequeathed their ‘share’ in said asset. Alternatively, in the other form of co-ownership, ownership is not automatically transmitted to the spouse, but the spouse’s rights of the other assets are to be weighed together with the interests of other beneficiaries of the deceased spouse.
Separately Owned Property and Inheritance
Separate property is property acquired before or during a marriage separate from matrimonial property.
Upon death where the deceased has left a will, the deceased has the right to bequeath separate property as desired (subject to legal right of a spouse deprived of those assets to file an application for dependency if not bequeathed reasonable assets).
When it comes to intestacy, the remaining spouse has a foremost interest ahead of other beneficiaries over the estate of the deceased including over assets that constituted separately owned assets of the deceased person while he or she was alive.
It can become complicated where separately owned assets became marital property e.g. through commingling or through your spouse acquiring a beneficial interest in the property. In this case, the remaining spouse has an interest in the asset that can prevent a will maker from bequeathing any other person than the spouse this asset because the interest of the remaining spouse has not been extinguished by the death of the deceased person.
Thus in order to clarify rights of inheritance, the deceased ought to closely consider his property rights over both matrimonial property and what is considered separately owned property to avoid instances of gifting persons other than the spouse gifts of such assets under the will
Effect of Separation on Inheritance
Contrary to common belief, separation of spouses without a divorce decree does not necessarily dispense with the entitlement of your separated spouse to inherit from your estate. Under the rules of intestacy, a spouse has the right to inherit your personal belongings and a life/absolute interest in the rest of your assets depending on your familial circumstances. Additional to this foremost right to inheritance, the separated spouse can also seek to be made your dependant of the deceased under section 26 of the Law of Succession Act.
Effect of Divorce on Inheritance
When it comes to intestate succession, divorce does not necessarily remove the divorced spouse from the scheme of inheritance. This is because the Law of Succession Act allows former spouses to claim inheritance as dependants, such an application can be made whether or not there is a will and where there is partial intestacy. A former spouse would address the court on issues such as their current and future income; the circumstances of the deceased’s other beneficiaries; the amount and value of assets left by the deceased among other matters in support of their application to be added as dependants to the estate of their divorced and deceased spouse.
Effect of Divorce on a Will
Divorce can have an effect on wills. Depending on the circumstances, a will continues to have effect after divorce and if you have bequeathed your former spouse gifts prior to the divorce and you do not revoke the will, then your former spouse named as a beneficiary under the will may still be entitled to an inheritance under said will. To avoid a situation of crossed purposes, update your will subsequent to your divorce and remove your former spouse from your list of beneficiaries should this be your intention. Additionally, even if you update your will your divorced/former spouse still has an avenue to apply to the court for inheritance on the basis that your will does not duly make provision for said former spouse. Nevertheless, the will maker may circumvent this during their lifetime through taking action by certain legal instruments.
Effect of New Marriage on a Will
Under the Law of Succession Act of Kenya, a prior will is revoked where the will maker enters into a new marriage. However, this rule can be avoided if the will maker expresses an intent in the will at the time of writing it – that the testator has made the will in contemplation of marriage to the new spouse. Thus to avoid a situation where a will you made is revoked by your marriage, write the will in contemplation of marriage to your new spouse.
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