Women's Land Tenure Framework for Analysis: Inheritance

Renee Giovarelli and Elisa Scalise · Sep 22, 2016

IV. Analyzing the Customary Law Framework

Page Contents

This page will highlight a few areas for analysis.

To jump to one of the sections on this page use the below links:

Customary Land Tenure Structure

  • Is land held by individual families, is it held communally, or both?
  •  Who is considered the “owner” of the land? 
  • Who makes decisions about how the land is allocated, managed, or used in the household? In the community? 
  • If land is owned communally but is allocated to individual households for their use, what is the nature and scope of the rights for the individual household?
  • Can those rights be transferred by inheritance (or otherwise)?
  • Are there different rights for people within the household? I.e. is the male household head presumed to be the manager of the land?
  • If land is held communally, who is ultimately responsible for land distribution? Are women in that group?

Marital Practices

  • *If yes, do wives live separately or together with their husbands? Does each wife live in her own house, or is there another arrangement?
  • *Does each wife have her own piece of land allocated for her use or does she share with the others wives?
  • *Are there any restrictions on polygamy (number of wives, etc.)?
  • If yes, is this considered a daughter’s pre-mortem inheritance?
  • If yes, who receives the marital gift?  (Possible recipients include: daughter, son, parents of daughter, or parents of son.)
  • If yes, who has control over the marital gift once it is received?
  • If yes, does the family ever sell land to provide this marriage gift?

Widows

  • Do widows remain on their deceased husbands’ land/ house?
  • If yes, are there any limitations to this (e.g. widows can only remain on the land/house until the time she remarries or until her children are of the age of majority or are married)?
  • If yes, is a portion of her land ever taken from her?
  • Is the custom to reclaim unused land rather than let her lease the land?
  • Does it matter what her husband died from?
  • If yes, can she stay on the land until she dies?
  • What if a woman does not have children?  Does this change anything?
  • What if she does not have sons?
  • What if she is not the first wife?
  • If wives do not remain on their husband’s property, where do they go?
  • If polygamy is legal, how are the land and house(s) divided among the wives?
  • Who decides who gets what if there is no will?
  • Does the division of property depend on the number and gender of the wives' children?
  • If polygamy is not legal, how are the land and house(s) divided among wives?
  • Who is usually responsible for taking care of widows?
  • If a specific child is responsible for taking care of a widow or widows, what does that child usually inherit?
  • Does the husband’s land go directly to the caretaker child or other children?
  • If a specific child is responsible for taking care of a widow or widows, but there is no child to fill that role, what happens?
  • Example: If it’s usually the eldest son, what happens if a family only has daughters?
  • Do widows have use rights to the land where they live until they die or re-marry?
  • What status do widows have in the community? 
  • What ceremonies must be practiced when a husband dies?

Enforcement

  • Do women know their rights?
  • What is the basic system for resolving inheritance disputes?
  • Formal court?
  • Tribal or customary court?
  • Elders?
  • Are women able to access all enforcement institutions?
  • What are the barriers women face in resolving disputes? 
  • Possible barriers include: costs associated with dispute resolution, location and hours of dispute resolution or enforcement bodies, comfort dealing with these systems, social barriers, complexity of paperwork requirements, etc.
  • Where do women usually go when they have a inheritance land dispute? Why?
  • Which dispute resolution actors know women’s rights? Which dispute resolution actors support women’s rights?
  • How are inheritance disputes resolved by custom?
  • Do both women and men bring inheritance complaints?
  • Are there any customary barriers to women going to court, government offices, or informal dispute resolution bodies?

Children's Inheritance

  • Are daughters and sons both considered heirs? Do daughters and sons inherit land rights equally?
  • If not, who usually inherits land—daughters or sons? 
  • Does birth order matter?
  • For polygamous families, does order of marriage of the mothers affect inheritance?
  • For those children who do not inherit land, do they inherit other property?
  • Do unmarried women (single, divorced, or widowed) inherit land from their fathers if they are living at home?
  • Does it matter if they are never married versus have had a relationship that ended?
  • Does it matter if they are not living at home?