A husband of thirty years dies without a will. Within weeks, relatives are discussing who should live in the house. It is a distressingly common scenario, and Kenyan law has a good deal to say about it , mostly in favour of the surviving spouse.
What rights does a surviving spouse have in Kenya?
The Law of Succession Act (Cap 160) protects surviving spouses whether or not there is a will; its text is available on the Kenya Law website at https://www.kenyalaw.org/. Where the deceased died intestate leaving a spouse and children, the spouse takes the personal and household effects and a life interest in the matrimonial home, with the children sharing the rest of the estate. Where there is a will, the spouse receives what it provides , but the Act still offers protection beyond its terms.
Can a will disinherit a spouse in Kenya?
Not simply by silence. The Act allows persons who were being maintained by the deceased immediately before death , a category that includes a surviving spouse , to apply to the court for reasonable provision out of the estate where the will, or the intestacy distribution, fails to make reasonable provision for them. The court weighs the size and character of the estate against the circumstances of the claimant, so the outcome is fact-specific rather than automatic.
How is the matrimonial home protected?
The life interest gives the surviving spouse the right to occupy the matrimonial home for life, subject to the Act’s conditions , notably that a widow’s interest can determine on remarriage. Where the home is jointly owned, or held under a matrimonial property regime, the surviving spouse’s own property rights must be distinguished from what passes under the estate; the two are frequently confused, and the distinction decides who owns what.
What should a surviving spouse do first?
Secure the documents , marriage certificate, the deceased’s titles, bank statements and any will , before others with different agendas intervene. Take advice before signing anything that purports to redistribute the estate, and remember that an informal distribution agreed under pressure can be revisited where the law was not followed.
Spousal rights are well established in Kenyan law, and asserting them calmly is usually enough. CS Advocates LLP advises widows and widowers on their entitlements and on estate administration; read more about the firm, and our conveyancing team deals with the property transfers that follow.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.