Inheritance Rights of Children Under Kenya’s Law of Succession Act

The Kenya Law of Succession Act governs inheritance (the distribution of a deceased person’s estate when they die). The Act ensures that children, whether born in or out of wedlock, have equal rights when it comes to inheritance. Let’s explore the key provisions regarding children’s inheritance rights, including who qualifies as children, whether they must share equally, the rights of grandchildren whose parents died before their grandparents, and whether being a boy or girl matters.

Who Are Considered Children?

Under the Law of Succession Act, children are defined as biological or adopted children (sons and daughters) of the deceased. This includes legitimate children, “illegitimate” children, and children born out of wedlock, and children recognized or accepted by a male person as his own. It also includes children conceived but not yet born.

Step-children and children whom the deceased had adopted are also recognized.

The Act recognizes the importance of ensuring equal inheritance rights for all children, regardless of their birth circumstances. Children includes minors or those who have become adults alike.

Equality in Inheritance:

One common misconception is that children must always share or inherit equally. However, whereas the law talks about equal division of inheritance, it also emphasizes principles of fairness and considers various factors in determining the allocation of assets.

While equal splitting is the standard, courts do have discretion in certain situations to provide more resources to one child if the circumstances warrant it. The law allows interested parties to apply for greater or even the entire estate to pass to one child under certain conditions, such as if that child lived with and took care of the parent before their passing. Courts are supposed to take into account various considerations, so as to ensure that each dependant got a “reasonable provision”. Adjusting shares away from equal splits should only happen with compelling justification.

The court is obliged to consider, for instance, the needs and circumstances of each beneficiary, and his relationship with the deceased. This means that while children have a right to inherit from their deceased parent, the actual distribution may vary depending on factors such as financial need, contributions to the deceased’s estate, prior gifts, and any existing agreements or arrangements.

Take note: the above allows a parent who is doing a will to give unequal (but reasonable) portions of inheritance to his different children.

Should Children of a Deceased Child Inherit from the Grandparents?

What happens if one of your children sadly passes away before you? Do their kids (your grandchildren) then get their parent’s share?

Yes – the law allows grandchildren to inherit the intestate share their deceased parent would have received.

So if your child died before you but had kids of their own, those kids directly inherit their parent’s share of your estate. This ensures that the lineage of the deceased child continues to benefit from the estate.

Does it Matter if the Child is Male or Female?

For inheritance, the Law of Succession Act does not differentiate between male and female children. The Act upholds the principle of gender equality, ensuring that both sons and daughters have an equal entitlement to their deceased parent’s estate. This means that regardless of your gender, you have an equal right to inherit from your parents.

Key Takeaways

• • For inheritance, “children” include biological, step-children and adopted sons and daughters.

• • All children, regardless of gender or birth order, have an equal right to inherit from their deceased parents.

• • Additionally, children of a deceased child (grandchildren) have rights to inherit their parent’s portion of the estate.

• • Property is to be divided equally among the children of the deceased, and where there is a dispute, the Court ensures each dependant gets a reasonable provision (which don’t have to be equal).

• • Where a parent wishes to give unequal inheritance to his children, this may be done by doing a well-drafted will.

• Legal advice is crucial for navigating complex situations and disputes.

Practical Considerations

Here’s what you need to know:

• • Make a Will: To ensure your wishes are followed, consider drafting a will. Specify how you want your estate distributed among your children.

• • Seek Legal Advice: If you’re unsure about the legal aspects, consult a lawyer. They can guide you through the process and help you make informed decisions.

 

Remember: The above is not specific legal advice for you. Always consult a lawyer to determine the best option for your specific situation

 

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