Understanding the ins and outs of family law in Kenya is the first step towards protecting your rights and those of your loved ones. This guide covers the most commonly asked questions regarding family law and their answers.
Top Questions about Family Law in Kenya.
We have compiled some of the most common questions we receive from our clients and their corresponding answers to give you insights into these legally complex scenarios and the laws that apply in each case.
Q1: Are gifts given during a person’s lifetime considered to be part of the giver’s estate upon their demise?
Gifts that a deceased person had given out during his lifetime, such as land or any other property, do not form part of their estate upon their demise. However, according to family law in Kenya, one must have transferred these gifts to the intended recipient before his or her demise. Where one dies without having transferred the gifts to the intended recipient, this can create an issue with the family, as that property has not been transferred to the recipient. In this case, it can end up being part of the deceased person’s estate, which will then be distributed to his or her family members. It is therefore important for one to transfer a gift to the intended recipient during his lifetime to avoid legal issues that may arise with the family if one dies without having transferred it.
Q2: Are there instances where properties do not require the succession process upon the owner’s death?
Going by the family law in Kenya, there are several instances in which a property may not go through the succession process. So, which are these?
Scenario 1: Where a property is owned under a joint tenancy agreement and one of the tenants dies. In such a case, this property automatically passes on to the surviving joint tenants without going through probate administration. This is an automatic process regardless of whether the deceased joint tenant would have wished that property to be inherited by another person or by his or her children. The surviving joint tenants hence have all the authority to keep that property, or if they wish, they can transfer the property to the deceased’s joint tenant’s children and or other beneficiaries.
Scenario 2: Where one has nominated someone as the beneficiary of that property, the property goes directly to the beneficiary without the succession process. This scenario applies to limited cases like life insurance policies or a benefit under the retirement benefits schemes. This also applies to cases where there is a living trust property. Here, the property is held and distributed by the trustee to the intended beneficiary(s) of that Trust according to the terms of the Trust.
Thus, as you can see, the succession process does not always take place where such scenarios are in play. To learn more about the succession process in Kenya, please refer to this guide.
Q3: What is considered matrimonial property under family law in Kenya?
In the Kenyan laws, any property that is acquired during the subsistence of the marriage is considered to be matrimonial property. This includes the matrimonial home and any other property acquired during that marriage, regardless of whose name is on the title.
Q4: What happens if someone has bought property on their own during a marriage and does not want it to be considered as matrimonial property?
As covered in Q3, family law in Kenya considers property to be matrimonial if bought during the subsistence of a marriage. However, there are instances where people wish to buy property but do not want it to be part of matrimonial property. In such a case, the property is presumed to be matrimonial property. This is a rebuttable presumption in that if a dispute arises over the status of the same as to whether it is matrimonial or otherwise, the parties to the dispute are bound to prove their contributions to the same, and the evidence therein will determine the ownership of the same. Therefore, it is important for married people to take this into consideration when making investments.
Q5: Can a child who has been adopted inherit the adoptive parents’ wealth?
According to family law in Kenya, a child who has been adopted can inherit from his or her adoptive parents as a right, just like other children. However, such a child cannot inherit from his biological parents unless the biological parents have willed him some inheritance. This is because the adoption process legally severes the relationship of the child with his biological parents.
Q6: Do all children inherit equally during the probate and administration process?
All children inherit equally under the Kenyan laws of succession, regardless of age or gender. This has been held in many landmark cases on succession matters that children can inherit equally from their parents regardless of whether they were born in or outside of wedlock. That all children are equal in the eyes of the law in matters of succession. These cases that have helped put aside traditional biases on inheritance, where children, and especially girls, in some communities are denied inheritance. The above is fully applied in intestacy succession. However, where there is a Will, the maker of the same can decide not to give his estate to all his children or to some of them with very good reasons well set out in the Will. This decision must be legally sound and can be tested in a court of law.
More Questions About Family Law in Kenya?
The above scenarios cover some of the most common questions on family law in Kenya. However, they barely scratch the surface when it comes to family law matters. If you have additional questions and would like legal advice on the best way forward, feel free to reach out to us using the form below, and one of our legal experts will be in touch with you shortly.