Equal Rights in Inheritance
Equal shares between wife and husband in marriage
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
(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)
Protecting Widows and Girls’ Rights in Testate Succession
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
(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
CASE STUDY: Drafters should repeal or amend any laws that terminate interests upon remarriage for the widow, but not the widower. For example, Kenya’s discriminatory Law of Succession Act provides that, in the case of intestacy, a surviving spouse gains an absolute interest in the deceased’s personal and household property and a life interest, which terminates upon remarriage (Articles 35, 36), the remaining estate. The life interest does not terminate for widowers upon remarriage. A widow who is forced to marry her husband’s relative could thus lose her life interest to her children. Under the law, both female and male children inherit from parents in equal shares in intestacy. In contrast, widowers do not lose their life estate interest upon remarriage. Furthermore, in intestacy, if the deceased is unmarried and has no children, the father is first in the line of succession, then followed by the mother. Furthermore, exceptions under the law further discriminate against women. The law does not apply to Muslims, and exceptions of farmland, crops, and livestock in certain districts result in the application of customary law to this property. Under Kenya’s patrilineal system, the estate goes to the deceased’s sons; where there are no sons, the deceased is treated as unmarried, thus excluding the widow in both cases. The problem is further exacerbated by Kenya’s Constitution, which makes an exception for its anti-discrimination clause in cases of adoption, marriage, divorce, inheritance, other personal matters and in customary law (Article 82). To protect widows’ rights under the Law of Succession Act, drafters should repeal: provisions that terminate widows’ inheritance upon remarriage, exceptions of land, crops and livestock under this law, provisions that exempt certain groups or religions from the law’s reach, and provisions that favor males over females in inheritance.
See: Anna Knox, et al., Connecting Rights to Reality: A Progressive Framework of Core Legal Protections for Women’s Property Rights, ICRW; Human Rights Watch, Double Standards: Women’s Property Violations in Kenya, 2003; Rachel Rebouche, Labor, Land and Women’s Rights in Africa: Challenges for the New Protocol on the Rights of Women, 19 Harv. Hum. Rts. J. 235 (2006).
CASE STUDY: Drafters should repeal laws that discriminate against women in inheritance and violate their right to equal rights and responsibilities as a parent in matters regarding their children. Uganda’s discriminatory Succession Act diminishes widows’ inheritance and parental rights in contradiction of Article 33(6) of the 1995 Ugandan Constitution of which states, “Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status, are prohibited…” Constitution of the Republic of Uganda.
Under the Act, a male intestate’s principal residence is inherited by the intestate’s heir, designated as the nearest lineal relative – generally the eldest son. Succession Act, § 26. Remaining property is divided among customary heirs, the wife or wives, dependent relatives and lineal descendants. If all classes of heirs are present, the wife or wives receive fifteen percent of the estate while lineal descendants inherit 75 percent. Succession Act, § 27.
Although the nearest lineal relative inherits the primary residence, the widow(s) retains a right of occupancy, to which is tied a right to cultivate any normally cultivated land adjoining the residential holding. Succession Act, Seconde Schedule Rules 1-2. This right of occupancy is limited, however, and terminates upon a widow’s remarriage or her continuous absence from the premises for six months. Succession Act, Seconde Schedule Rules 8. In practice, the right occupancy is often terminated based on mere suspicion that the widow is in a relationship; also, in-laws frequently intimidate a widow into leaving the land so as to activate the six-month continuous absence provision. Once the widow loses her right to occupancy, she also loses her right to farm the surrounding land.
Further limitations terminate a widow’s right to occupancy by court order if it is found that “suitable alternative accommodation is available” under which terms the widow would not suffer hardship. Succession Act, Second Schedule, Rule 9(b). A court order terminating occupancy may also be brought if it is found the widow has not complied with the several provisions of Rule 7 of the Second Schedule, which require, among other things, that a widow keep the premises in good repair, farm all land usually farmed, and maintain the holding in the physical and legal state in which it was transferred. Succession Act, Seconde Schedule Ruless 7, 9.
The laws also violate rights protecting the family and child. First, the act allows the husband to designate relatives other than the mother as the children’s guardians in his will. Succession Act, § 43 Second, the deceased’s relatives, including his parents, siblings, aunts and uncles, are entitled to guardianship of the children before the mother in cases of intestacy. The Act details who will be appointed guardian if a deceased father has not made a testamentary guardian appointment, notably excluding the mother as a preferred guardian. In order of preference, guardians are as follows: (1) parents of the deceased; (2) siblings of the deceased; (3) paternal aunts and uncles of the deceased; (4) the mother’s brothers; and finally (5) the mother’s father. Succession Act, § 44.
Read in conjunction with the above-mentioned inheritance provisions which allow for a father’s children to receive seventy-five percent of his estate, these custodial provisions create a significant incentive for the intestate’s relatives to act upon their right of guardianship. The Children Act provides an additional pathway by which relatives may gain custody by allowing the court to make guardianship appointments based upon a potential guardian’s ability to financially provide for the children. For widows who have lost their home and property through the succession law, it poses another challenge for a widow to prove her economic capacity.
Finally, the Succession Act grants the power of administration to that person who is entitled to the largest portion of the intestate’s estate. Succession Act, § 202. In most cases, this will be the oldest son as the closest male lineal relative. The administrator’s powers are substantial, as he is authorized to “dispose of the property of the deceased…as he or she may think fit,” though this discretion is subject to the provisions governing the rights of title and occupancy to residential holdings. Succession Act, § 270.
Ensuring Effective Administration of Inheritance
Information Gathering and Monitoring
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.
CASE STUDY: Drafters should adopt legislation to override judicial decisions that uphold discriminatory practices or interpret laws in a manner that discriminates against women and widows. In In the Estate of Agboruja (19 N.L.R. 38, Nigeria, 1949), the appellate court granted an application by an administrative official for a modification of an order of a lower court that had appointed the half brother of the deceased the legal guardian of the deceased’s young children. Under the customary laws of intestacy, the half brother had inherited the deceased’s property and had entered into a marriage by inheritance with the widow. The widow had left the half brother after a quarrel, taking along her children with the half brother’s consent. The court granted the application to modify the order, thereby revoking the guardianship of the half brother in favor of the mother, but only on the condition that the mother would have the children educated in a Christian managed school. Notwithstanding the decision in favor of the widow, the court affirmed the discriminatory custom of inheritance of widows, whereby the deceased’s widow and her children, along with other property, is inherited by the deceased’s next male relative, where the deceased and the heir are “pagans.” The Court stated that "there can be nothing intrinsically unfair or inequitable even in the inheritance of widows, where those who follow the custom are pagans and not Mohammedans or Christians. The custom is based on the economics of one kind of African social system, in which the family is regarded as a composite unit.”
The Nigerian Law Reform Commission, noting numerous calls by various interest groups for prohibition of the practice of widow inheritance, recommended in 2006 that the practice be discontinued altogether (regardless of whether the family involved was pagan or not), in light of significant changes in the social climate. At the same time, the Commission recommended several corresponding or supporting legal changes, including the following. 1) Requiring compulsory registration of marriage, to include confirmation of payment of a bride price and confirmation of voluntary consent to the marriage by both parties. 2) Grant of an automatic right of child custody to a widow. 3) Grant of an automatic status as heirs to the widow and children of a deceased man, except where he had given explicit indication of wishes to the contrary during his lifetime. On the other hand, the Commission recommended not changing the practice, customary in some communities, of allowing posthumous marriage, which serves the purpose of according full status to the children of the man and woman in communities where legitimacy of a person is determined solely by marriage between the parents and something had prevented the couple form carrying out their intent to marry. The Commission noted that although it did not believe this practice should qualify for registration of marriage, it should be left alone because it "affords enhanced protection to women and children and there is nothing in it to suggest that it could in itself be contrary to public policy or public morality." See: 2 Nigerian Law Reform Commission, Working Paper on the Reform of the Laws on Marriage (2006).
Promising Practice: Uganda’s Succession Act, Cap. 162 Laws of Uganda. The Constitution Court has declared the following provisions of this law unconstitutional:
It will require Parliamentary action to amend the law and address the gaps created by this ruling. (See Dora Byamukama, Effectiveness of legislation enacted to address harmful practices against women in Uganda, including maltreatment of widows and female genital mutilation, 2009)