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.
Promising Practices: Mojekwu & others v. Ejikeme & others (5 NWLR 402, Nigerian Court of Appeal, December 9, 1999): The two great grandsons and the granddaughter of Reuben Mojekus, who died intestate, appealed the ruling of a lower court in favor of five male members of Reuben’s brother’s family with regard to the inheritance of Reuben’s property. The litigation began with the appellants’ request for a restraining order against the respondents, who had trespassed by entering Reuben’s compound where the appellants were living. This case involved the practice of “Nnewi,” where a man dies without sons but has daughters. A daughter must remain unmarried and bear children who effectively become her dead father’s heirs to inherit and carry on the male lineage. The appellants claimed that Nnewi had been performed for Virginia, Reuben’s daughter and the appellants’ mother and grandmother, which entitled her and her children to inherit Reuben’s property. The respondents, on the other hand, claimed that the custom of “Nnewi” had been performed for Reuben’s other daughter, Comfort, entitling her and her children to inherit the property, but since Comfort had died childless, Reuben is considered under customary law as having died without a surviving male heir, thereby causing the property to pass to Reuben’s brother or the brother’s male issue. On appeal, none of these arguments, all of which were based on Nigerian customs, prevailed. Finding that these customs were discriminatory against women and “repugnant to the principals of natural justice, equity and good sense,” the court concluded that the appellants, as Reuben’s blood relations, were entitled to inherit his estate and that it would be inequitable to throw them out of their home. While not explicitly stated, the court based its ruling on fundamental rights guaranteed to women under the Nigerian Constitution and an international convention to which Nigeria was a party.
Other recent judicial decisions also have supported women’s rights when there is a conflict between customary and formal legal systems. In Kenya, the Court of Appeals cited to the non-discrimination standard of Kenya’s Constitution, the African Charter on Human and People’s Rights, and CEDAW, when it prevented the enforceability of customary law in inheritance and also found that the fact that girl children might later be married should not impact their equal share in inheritance. (Rono v. Rono, Court of Appeal, 2005) In 2004, the High Court in Tanzania used CEDAW to confirm that administrative rights to property belong to a widowed spouse, not her husband’s family. (Chilla v. Chilla, (January 6, 2004) High Court of Tanzania at Dar Es Salaam). In 2012, the High Court of Botswana overturned customary law in granting women the right to inherit family homes. Tswana custom had prescribed that the family home is inherited either by the first-born or last-born son, depending on the tribe. (Mmusi and Others v Ramantele and Another, High Court of Botswana, October 2012.) See: Security of Tenure for Older Women (HelpAge, 2012).
CASE STUDY: In South Africa, The Bhe case concerned two minor girls who sought to inherit their deceased father’s estate, and was brought against their grandfather who, under “black” law and custom, was to inherit. The girls argued that that the rule of primogeniture under black law and custom must be interpreted in line with the Constitution, so as to allow them and other girls in their position to inherit from their deceased father’s estate. On September 26, 2003, the Cape High Court found for the girls, and declared that certain sections and regulations of the Black Administration Act were unconstitutional and invalid, and that Section 1(4)(b) of the Intestate Succession Act 91 of 1987 was unconstitutional and invalid. The Court concluded:
We should make it clear in this judgment that a situation whereby a male person will be preferred to a female person for purposes of inheritance can no longer withstand constitutional scrutiny. That constitutes discrimination before the law. To put it plainly, African females, irrespective of age or social status, are entitled to inherit from their parents’ intestate estate like any male person. This does not mean that there may not be instances where differentiation on gender lines may not be justified for purposes of certain rituals. As long as this does not amount to disinherison [sic; i.e.: disinheritance] or prejudice to any female descendant. On the facts before us, therefore, the first two applicants are declared to be the sole heirs to the deceased’s estate and they are entitled to inherit equally.
The Bhe case found that the practice of male primogeniture (the custom of the firstborn male inheriting the entire estate) as provided for under customary law is discriminatory, and classified as unconstitutional all legislation that allows such discriminatory laws to be applied. In 2004, after the decision in Bhe, South Africa enacted the Reform of Customary Law of Succession and Regulation of Related Matters Act, which gave widows and daughters equal inheritance rights with widowers and sons. See COHRE, Huairou Commission, Open Society Foundations, UNDP, et al., Tools For Change, Applying United Nations Standards to Secure Women’s Housing, Land and Property Rights in the Context of HIV, p. 32-33.
- 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, 2006; OECD Development Centre, Gender Equality and Social Institutions in Tunisia)
- Legislation should enact an optional secular law governing personal matters, including marriage, divorce, dissolution of marriage, inheritance, children and family, that applies to people of any religious affiliation.
Lebanon recognizes and entrusts personal status matters to 18 different religious denominations. Consequently, each religious denomination operates independent of the state judiciary and uses its own courts, laws, and procedures on personal status for its members. The result is a fragmented framework of family law as regulated by each religious denomination, which tend to discriminate against women. See: CEDAW, Initial Report of Lebanon, 2004
. Lebanon has attempted to codify inheritance in a secular law for non-Muslims. The succession law brings important legal reforms to previous Islamic law, such as the lack of differential treatment based on sex and granting larger portions of the estate to the surviving spouse. It does not, however, apply to Muslims, thereby leaving Muslim women subject to succession rules of Shari’a, which makes several distinctions based on sex. (See: 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
, 2006; Section on Family Law and Marriage Laws)
The Maldives passed a law
aimed at preventing domestic violence that, among other things, shows an interaction between secular and Shari’a law, and allows that a marriage can be dissolved at the request of a woman upon the perpetration of domestic violence if certain “Thafriq” grounds are met. “Thafriq” is the right of a woman under Shari’a law to demand the dissolution of a marriage (Part 9). If those grounds are met, the marriage is treated as immediately dissolved under the new law. See also Passing of Domestic Violence Bill in the Maldives
and Domestic Violence Bill carrying key changes
Equal shares between wife and husband in marriage
- Legislation should ensure that wives and husbands are entitled to inherit equal shares of a marriage.
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.
CASE STUDY: Legislation should address discrimination against women and girls found in religious laws and ensure they may inherit equal portions to males. Iran’s legal system is based on Islamic principles, or the Ja’fari school of Shi’a Islam. Article 913 of the Civil Code governs inheritance between spouses in marriage. On its face, the provision discriminates against women by allocating them smaller shares than men. Where the wife dies, the husband may inherit: ¼ of her estate where she has surviving descendants; ½ if she has no surviving descendants, and; 100 percent of her estate if there are no other heirs. When the husband dies, the wife may inherit: 1/8 of his estate where he has surviving descendants; ¼ of his estate where he has no other heirs, and; where he has surviving multiple wives, a equally divided portion of the ¼ or 1/8 portion to be shared with other the wives.
Individuals in Iran have found creative ways to ensure their spouse can inherit as they desire. A testator can bestow a maximum of 1/3 of his or her estate, leaving the remainder to be divided among the heirs according to law. For example, a husband either purchases property under his wife’s name or transfers property titles to his wife’s name to ensure she can inherit more than 1/3 of his estate or the designated share under the Civil Code. Fathers have likewise used the same method to provide for their children. This enables the testator to determine how to designate his estate in spite of the law. (See: 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, 2006)
Equal right to inherit all types of property
- Legislation should ensure that wives and husbands are entitled to inherit equal kinds of property. For example, a legal system that states a husband may inherit the entirety of his wife’s estate, but she may only inherit moveable chattel and the cash value of buildings and trees on her husband’s estate constitutes discrimination against women and should be amended. Such laws discriminate against women in the short- and long-term: land and real property tends to increase in value, while moveable goods have a tendency to depreciate over time.
(See: 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, 2006)
CASE STUDY: Legislation should grant equal rights to daughters and sons to inherit irrespective of customary laws. The discriminatory Zimbabwean case of Magaya v. Magaya (1999), 3 LRC 35, 40 (Zimbabwe Supreme Court) addressed a daughter’s inheritance rights under the Administration of Estates Act 1997. Article 68 of the act states that the estate of deceased is to be administered according to customary law, which favors men over women. The Court examined the issue of discrimination against women where a man with two wives dies intestate, leaving a daughter by the first wife and sons by the second wife. In this appeal to the Supreme Court of Zimbabwe, the daughter of the first wife sought to overturn the decision of a magistrate that where there was a man of the family entitled to claim heirship, a woman of the family could not be the heir, under the customary law of Africa. The daughter based her challenge on international human rights agreements to which Zimbabwe was a party. The justices held that where the marriages were solemnized under customary law, the intestate laws under customary law apply. Noting that the Zimbabwe Constitution’s prohibition against discrimination did not include gender (Section 23, which also does not apply to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law), and that, in any event, the Constitution exempted customary laws regarding the devolution of property on death, the justices upheld the decision of the magistrate. The justices justified the decision in favor of the male heir, deeming that the daughter would not honor her obligation to care for her original family due to her commitment to her new family. The justices reasoned that women would be inclined to divert the property of her original family to the new family. The justices believed that sons, on the other hand, would be more likely and able to honor their obligations to both their original and new families. In concurring opinions, the justices found support in a number of analogous laws and cases, including the customary laws of the deceased's tribe, noting that when the marriages are under a tribe’s customary law, the customary laws of succession of that tribe control. This decision and its reasoning discriminate against women. Drafters should ensure that women are guaranteed equal inheritance rights with men.
In South Africa, in marriages under the default full community or partial community property systems, the widow may inherit all of the joint marital property. The widow will inherit the entire estate if there are no children. Even if excluded from the spouse’s will, a practice that should not be permitted by law, a widow may still seek maintenance.
Estate law in the Bahamas specifies that:
Art. 4. (1) The residuary estate of an intestate shall be distributed in the manner mentioned in this section, namely —
(a) if the intestate leaves a husband or wife and no children, the surviving husband or wife shall take the whole residuary estate;
(b) if the intestate —
(i) leaves a husband or wife and —
(A) one child, the surviving husband or wife shall take one half of the residuary estate and the remainder shall go to the child;
Protecting Widows 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 clarify that a person may only bestow by will his or her own share in jointly held marital property.
- 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.
Example: The Canadian HIV/AIDS Legal Network has developed guidelines on how to determine maintenance:
Article 46. Determination of maintenance
(1) The court shall make an order of maintenance to any and all dependents of the deceased who, in the court’s determination, require maintenance in order to satisfy their needs, notwithstanding the provisions of the will, if any.
(2) The court shall determine the nature and amount of maintenance payable to a dependent under this Section having regard to:
(a) the nature and quantity of the property representing the deceased’s estate;
(b) the responsibilities and needs which each of the dependents of the deceased has and is likely to have in the foreseeable future;
(c) the lifestyle, income, earning capacity, property and resources which each of the dependents of the deceased has and is likely to have in the foreseeable future; and
(d) the deceased’s reasons, so far as ascertainable, for not making adequate provision for a dependent.
(3) Where the dependent is a child, in determining the nature and amount of maintenance the court must have particular regard to:
(a) the financial, educational and developmental needs of the dependent, including but not limited to housing, water, electricity, food, clothing, transport, toiletries, child care services, education (including pre-school education) and medical services;
(b) the age of the dependent;
(c) the manner in which the dependent is being, and in which his or her parents reasonably expect him or her to be, educated or trained;
(d) any special needs of the dependent, including but not limited to needs arising from a disability or other special condition; and
(e) the direct and indirect costs incurred by the parent or guardian of the child in providing care for the dependent, including income and earning capacity forgone by the parent or guardian in providing that care.
(4) Where the dependent has a disability or disabilities, in determining the nature and amount of maintenance the court must have particular regard to:
(a) the extent of the disability;
(b) the life expectancy of the disability;
(c) the period that the dependent would in all likelihood require maintenance; and
(d) the costs of medical and other care incurred by the dependent or their parent or guardian as a result of the disability (Sections (3) and (4) are derived from Namibia, Maintenance Act of 2003, ss. 16(3) and (4))
(5) Where the estate is insufficient to satisfy the maintenance needs of all dependents, the court shall make equitable maintenance orders in accordance with available assets and the factors in Sections (2), (3) and (4).
(See: Canadian HIV/AIDS Legal Network, Respect, Protect and Fulfill: Legislation for Women’s Rights in the Context of HIV/AIDS, Vol. Two: Family and Property Issues, 2009)
Restrictions on Testamentary Freedoms
- Drafters should also restrict testamentary freedoms to ensure spouses receive some part of their deceased spouse’s estate, which includes the marital home. Legislation should ensure that widows are entitled to an “equitable share in the inheritance of the property of her husband” and have the right to remain in the marital home. Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, Art. 21(1).
- Legislation should prohibit testators from granting guardianship of children to someone other than the surviving spouse, and state that any testamentary provision that does so is null and void. Laws should state that widows automatically become the guardian of their children upon the death of their husband, unless the child’s best interests, as determined in accordance with law and procedures by a competent authority, dictate otherwise.
(See: COHRE, Women and Housing Rights Issue Brief 7, p. 8. See: Harmful Practices; UN-Habitat, Progress Report on Removing Discrimination against Women in Respect of Property & Inheritance Rights (2006))
Protecting Widows 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. See: Section on Marital Property Systems. 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 and respects widows’ rights. Drafters must provide for public awareness and outreach about these laws to communities and religious and traditional leaders to facilitate implementation. For example, Ghana has passed the Intestate Succession Law, providing the surviving spouse a larger share of the estate and rights in the other’s property in both statutory and customary marriages that are registered. Implementation has been challenging due to a conflict with traditional family structures, which does not view the widow as part of her husband’s family and therefore not entitled to a share in her husband’s estate. Outreach is a necessary component to facilitate effective implementation. (See: Elom Dovlo, International Law and Religion Symposium: Religion in the Public Sphere: Challenges and Opportunities in Ghanaian Lawmaking, 1989-2004, 2005 Brigham Young U. L. Rev. 629 (2005))
A Kenyan succession case demonstrates the often complex interactions between customary and formal law in relation to gender and inheritance. In the Nandi culture in Kenya, elder women who are childless traditionally are allowed to marry another woman of childbearing age to become a wife. This practice is known in Nandi culture as woman-to-woman marriage and was at issue in the case of Katam v. Chepkwony (2010)
. In this case Ms. Katam, who had two children at the time, married an elderly childless woman who owned substantial property. The marriage was conducted in a traditional Nandi ceremony involving bride price paid at the time of the engagement and at the time of the wedding, as well as a marriage contract, and an agreement that Katam would inherit from her spouse, the elder woman. When the elder woman died, Katam claimed that she was the deceased’s widow. Katam’s claim was contested by male in-laws of the deceased who claimed that the customary marriage had never taken place and that Katam was simply a servant of the deceased. The court held in favor of Katam, finding that she had indeed entered into a woman-to-woman marriage under Nandi customary law and that she was entitled to inherit from her woman spouse. The Katam
case highlights the fact that an understanding of the particular features of customary laws in a given location is important to effectively address women’s inheritance rights.
Ensuring Effective Administration of Inheritance
- Legislation should ensure that either women or men, irrespective of marital status, have standing to administer an estate. Laws should grant the surviving spouse the automatic right to administer the estate. Where the deceased is survived by multiple wives, laws should grant each wife the right to administer her separate marital home, household property within and surrounding residential land; the joint right to administer all other property of the deceased or to select or petition the authorities to designate another administer. The administrator should be empowered to administer and distribute the estate with the same rights over the property as the deceased would have if alive. Laws should charge the administrator with ensuring a final inventory of the deceased’s property is made and sworn to by two non-beneficiary witnesses, and to that end, meet with the surviving spouse and children, investigate title deeds and bank accounts, and consult with community leaders, employers, relatives and neighbors who may have knowledge of the deceased’s assets. (See: Canadian HIV/AIDS Legal Network, Respect, Protect and Fulfill: Legislation for Women’s Rights in the Context of HIV/AIDS, Vol. Two: Family and Property Issues, 2009)
- Laws should provide for need-based, low-cost or free legal assistance programs for women and girls dealing with inheritance issues. Promotion of paralegal programs focused on inheritance issues may also be included in legislation.
- Legislation should include public awareness programs aimed at educating all stakeholders, including traditional, religious and community leaders as well as politicians and security officials about about widows’ human rights and the law, as well as rural and urban women and girls on their human rights, remedies and how to enforce them. Legislation should create and support enforcement mechanisms, such as a police unit, to facilitate women’s property and inheritance claims.
To increase the knowledge and abilities of locally elected women to advocate on property and inheritance issues, the Khan Foundation provided information and skills training to 400 locally elected women so that they would be able to help promote awareness and action on issues and laws pertaining to property and inheritance rights. Participants in the program were also introduced to the Women’s Lawyers Network, which is funded by the Khan Foundation and can serve as a free legal resource at the local level.
Madaripur Legal Aid Association (MLAA) has developed a network of women leaders from grassroots women’s groups, that it uses to provide information and logistical support for the promotion of women’s rights. MLAA conducted a field survey to assess awareness of property and inheritance rights and Muslim inheritance law among local women. The survey results were used to develop informational materials, which were then used as a training tool for hundreds of community leaders and thousands of grassroots women.
- Laws should prohibit compelling an heir to hand over an inheritance share to another third party using force, coercion or fraud. Where a widow or heir chooses to give her share to a male member as a guarantee for their financial support, legislation should provide that a written contract stating the terms of agreement, amount and schedule of support to be provided by the male to the woman, and remedies for breach of contract, and bearing the signatures of both parties and a witness, is required for the validity of such transfer. Legislation should require responsible authorities overseeing such transactions to confirm identification and registration numbers before authorization.
Information Gathering and Monitoring
- Legislation should require a comprehensive review of all formal and customary laws to ensure women’s have equal rights to housing, land and inheritance. Legal reviews should pay particular attention to achieving consistencies among and within laws. For example, drafters should ensure that statutory laws comply with and transpose constitutional provisions that protect the rights of widows.For example, the Law Reform Commission of Tanzania conducted an extensive review of the country’s succession laws, including their impact on the rights of women, and made recommendations for reforms of the law in a final report. The Law Society of New South Wales, Australia conducted a similar review of the Property (Relationships) Act and its impact on women’s inheritance. The submission to the Law Reform Commission can be found here.
CASE STUDY: Ghana’s Constitution provides for equality between spouses with regard to inheritance, access to joint marital property, and division of joint marital assets upon dissolution:
(1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.
(2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.
(3) With a view to achieving the full realization of the rights referred to in clause (2) of this article-
(a) spouses shall have equal access to property jointly acquired during marriage;
(b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. (Article 22).
Although Ghana’s Constitution prohibits discrimination based on several grounds, including gender, the same article provides an exception with regard to adoption, marriage, divorce, inheritance and “other matters of personal law” (stating that “[n]othing in this article shall prevent Parliament from enacting laws that are reasonably necessary to provide…for matters relating to adoption, marriage divorce, burial devolution of property on death or other matters of personal law”) (Article 17). Drafters should extend non-discrimination guarantees to all personal matters, including adoption, marriage, divorce, inheritance, where discrimination against women is often prevalent.
Promising Practice: Uganda’s Succession Act was challenged in court in 2007 by a women’s human rights NGO, Law and Advocacy for Women in Uganda. The Constitutional Court declared the following provisions of the law unconstitutional:
- Art. 27: provides only for male intestacy
- Art. 27: grants a widow 15% of an estate and a widower 100%
- Rule 8(a) of Second Schedule to Succession Act: widow loses her right to live in the marital home upon re-marrying, while a widower loses his right upon death
- Art. 43: the father may appoint a guardian even if the mother is still alive
- Art. 2(n)(i) and Art. 44: Male lineage has precedence over the female lineage in selecting a guardian
- Art. 14: Automatic acquisition of marital home to the wife but not the husband
- Art. 15: Legal separation ends a wife’s acquired domicile
It will require Parliamentary action to amend the law and address the gaps created by this ruling. Legislation to address the problem, including amendments to the Succession Act and passage of the Marriage Bill, remain pending. (See Dora Byamukama, Effectiveness of legislation enacted to address harmful practices against women in Uganda, including maltreatment of widows and female genital mutilation, 2009)
- Legislation should require studies on inheritance and property laws and practices throughout the country to understand the nature and extent of discrimination against women and girls in inheritance and property rights. Legislation should establish and support monitoring mechanisms to evaluate implementation of these laws and women and girls’ inheritance and property claims.