c) Effects of Re-marriage to succession of the Deceased’s Estate

Section 35 of the LSA currently provides that a widow’s right to inheritance shall determine upon re-marrying.  The LSA Bill seeks to eliminate this gender bias by replacing the word ‘widow’ with ‘spouse’. Specifically, the Bill provides that a spouse loses their lifelong interest in the deceased’s estate when they re-marry. This effectively applies to both men and women thus eliminating the differential treatment of men and women on the issue of termination of the right to inheritance upon marriage.

Some scholars have argued that the termination of the right to inheritance upon re-marriage infringes Right to Marriage as provided under Article 45 of the Constitution of Kenya. This is because that particular provision may affect one’s choice in deciding whether or not to re-marry since that re-marriage comes at the risk of losing the right to inheritance.

Other scholars have argued that the proposal to strip a spouse their interests if they remarry is to protect the estate from a reckless widow/widower where minors and other dependents are involved.