Can a Divorced Wife Inherit Her Husband’s Property in Kenya?

Once married, in Kenyan law, spouses become automatically entitled to their partner’s property in case of death and can thus inherit their property, uncontested.
This marriage could be civil, customary or a church wedding, but a cohabiting partner or a fiancée of a spouse does not hold any claim to this automatic inheritance.
Upon divorce, however, things become a lot more complicated as thisautomatically removes a former spouse from entitlementunder intestate succession rules.
In this explainer, we will dive into the few instances when a divorced woman can successfully and lawfully lay claim to the property of their ex-husband under the Law of Succession Act.
These will range from instances when the deceased has left a will, and even when a will has not been left.
The first instance where a divorced woman can inherit from a deceased spouse is if she is explicitly named in the deceased’s will.
Even if the will was drafted before the divorce, it does not automatically become invalid, unless the ex makes an amendment or writes a new one after the divorce.
Under Section 26 of the Law of Succession Act, an ex-spouse may be entitled to inherit a portion of the inheritance if they can prove that they were a dependant of the deceased even after the death.
For instance, if you were already receiving maintenance from the late ex-spouse, like alimony, your claim as a dependant will be much stronger than one who was not.
However, the court still has to consider several other factors, including the ex-wife’s current income, the financial needs of the deceased’s other beneficiaries, and the overall value of the estate before deciding on what they inherit.
In instances when the deceased had acquired property with the ex-wife while still married, the Matrimonial Property Act 2013 recognises that both spouses have equal rights to matrimonial property.
Thisdoes not, however, mean automatic equal sharing,as the division is based on the proven contributions of each spouse towards its acquisition or development.
These include both monetary and non-monetary contributions.
The ex-wife must also have proof that they co-owned the property, including their names being on the property’s title deeds. The burden is on her to prove her contribution, whether direct or indirect.