The President assented to law the Law of Succession (Amendment) Bill, No. 75 of 2019 on 17th November 2021, effectively amending two key provisions of the Law of Succession Act 1981, Cap 160 Laws of Kenya.
First, the new law amends section 3 of the Act by introducing a new definition of a ‘spouse’ as “a husband or a wife or wives recognized under the Marriage Act”. Section 2 of the Marriage Act, No. 4 of 2014 defines a spouse as a “husband or wife”.
Second, there is an amendment to the meaning of a ‘dependant’ as provided for under section 29 of the Act. A dependant generally refers to a person who may be entitled to a share of a deceased person’s property. A ‘dependant’ under the new law is defined as ‘the spouse and children of the deceased whether or not maintained by the deceased immediately prior to his death; and such of the deceased’s parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters and half-brothers, half-sisters as were being maintained by the deceased immediately prior to his death”. This is a departure from the earlier provision which included former wives or wives as dependants. A former wife or wife now does not appear to be covered under the definition of spouse (which refers to a current husband or wife) and may thus not be eligible as beneficiaries/dependents of a deceased’s estate.
Third, section 29c of the Act which provided that “where the deceased was a woman her husband would be a dependant if he was being maintained by the woman immediately prior to her death” has been repealed. However, this is not to mean that a husband cannot benefit from their wife’s estate upon her death since both wife and husband are now considered as spouses and therefore dependants of each other’s estate under the law. Much to the contrary; what the law has done is to make the erstwhile patriarchal provision gender neutral, so as to make it possible for either a wife or a husband to benefit from each other’s estate upon their death.
Fourth, the new law provides that a person not named in the section will not be a dependant unless the person proves that they were being maintained by the deceased for a period of two years prior to the death of the deceased. This provision seeks to prevent persons who would otherwise seek to benefit from the estate of a deceased by either claiming they were a secret lover to the deceased or were being maintained, as has happened in the past. One will only qualify to get a share of the estate if they are able to prove maintenance for at least two years by the deceased prior to their death.
It is important to note that the law of succession applies to the devolution of the estate of a deceased person who dies intestate (without making a will). One may therefore avoid application of the law of succession to their estate by courts by making a valid will before their death.
