Women and girls in forced marriages should not face discrimination in inheritance upon the death of their spouse, despite the potential invalidity of their marriage.
Equal rights in inheritance
- Legislation should prohibit discrimination against women and girls in inheritance and explicitly allow females to inherit property and land on an equal basis with males. Laws governing lines of succession should ensure equality of rank between mothers and fathers, between brothers and sisters, between daughters and sons, and between spouses. Legislation should state that civil laws shall have supremacy over customary laws and practices that discriminate against women and girls.
- Drafters should enact superseding civil laws to address provisions that discriminate against women and girls in religious laws. For example, Tunisia enacted legal reforms that run contrary to Sharia law in cases where the deceased leaves no sons. Rather than distribute the estate to the paternal family, the Personal Status Code designates the paternal daughters and granddaughters ahead of the deceased’s brothers and paternal uncles in succession rank to inherit the father’s total estate before eligible heirs. In this case, the line of succession ranks the surviving spouse first, then daughters, then granddaughters. Also, the estate of a daughter who dies before her father goes to her children, rather than her father. (See: Anna Knox, et al., Connecting Rights to Reality: A Progressive Framework of Core Legal Protections for Women’s Property Rights, International Center for Research on Women; Centre on Housing Rights and Evictions, In Search of Equality: A Survey of Law and Practice Related to Women’s Inheritance rights in the Middle East and North Africa (MENA) Region, In Search of Equality: A Survey of Law and Practice Related to Women’s Inheritance rights in the Middle East and North Africa (MENA) Region,2006; OECD Development Centre, Gender Equality and Social Institutions in Tunisia)
Equal shares between wife and husband in marriage
- Legislation should ensure that wives and husbands are entitled to inherit equal shares of marital property.
For example, Malawi’s law specifies that upon the death of the spouse, the surviving spouse (or spouses in the case of a polygamous marriage) and children inherit equal shares of the property, subject to protection for the property in the marital home. Art. 16.
Equal right to inherit all types of property
Protecting women and girls’ rights in testate succession
- Legislation should guarantee to both women and men, irrespective of marital status, the capacity to make a will. Drafters should develop guidelines on the forms and procedures of wills for establishing validity. Legislation should state that a benefactor may bestow by will any property to which he or she was entitled to at the time of death by law. Legislation should prohibit a married person from bequeathing the marital home to a person other than the spouse in the will if he or she is survived by the spouse.
- Legislation should mandate that every will should provide maintenance for dependents, which includes surviving spouses. The CEDAW Committee Gen. Rec. 29 specifies that disinheritance of a surviving spouse should be clearly prohibited.
Protecting women and girls’ rights in intestacy
Inheritance laws should ensure equality between males and females’ right to inheritance in cases of intestacy.
- Laws governing intestate succession should automatically provide spouses a share of the estate, including a life interest and right to reside in the marital home. Some countries provide a succession order in intestate cases, placing widows as the first in line for succession. Legislation should provide widows with the full right to their own property. The Canadian HIV/AIDS Legal Network recommends two devolution options for surviving spouses in intestacy: 1) Granting the spouse a set preferential share, and 2) devolve the entire estate, if smaller than a certain value, upon (in order of succession) the surviving spouse and children, the deceased’s parents, and the next category of succession.
- Legislation should mandate that customary systems grant women equal inheritance rights with men and should state that conflicts between civil and customary or religious laws are to be resolved in a manner that promotes gender equality. Drafters must provide for public awareness and outreach about these laws to communities and religious and traditional leaders to facilitate implementation.
See the Maltreatment of Widows section of this module for more information on inheritance laws.