Women's Land Tenure Framework for Analysis: Inheritance

Renee Giovarelli and Elisa Scalise · Sep 22, 2016

III. Analyzing the Formal Legal Structure

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:

Inheritance for Wives: Nature & Scope

  • Identify which laws cover inheritance or succession of property.
  • Are different types of land treated differently (ancestral land, purchased land, “customary” land)? (This information may also be contained in a law that governs categories of land.)
  • Does the law define who the heirs are? 
  • Is a surviving wife an heir under the law?
  • What are the wife's rights? Are they the same in nature and scope as those of other heirs?
  • If yes, is inheritance under each regime treated similarly or differently?  
  • How is “wife” defined? 
  • TIP: The definition may be in another law governing marital status or family law.  Also, there may be a commonly held interpretation of the definition of wife (e.g. that it only applies to registered or formal marriages).
  • Does the law recognize all kinds of marriages (i.e. formalized/registered, customary, and religious)? 
  • Are there separate inheritance laws for each type of marriage?
  • Does the law recognize cohabitation/consensual unions/couples who put themselves forward as married? 
  • If so, what are the inheritance rights for women in those relationships? 
  • What is the nature and scope of the right to inherit as a wife?
  • Is the right that is inherited limited in time or by some event (e.g. until she remarries or until her children are of the age of majority)?
  • Is it an ownership right? Or is it “ownership like” (e.g. long-term, secure use rights)?
  • Can she transfer the rights gained by inheritance, sale, bequest, gift, or otherwise? 
  • Do wives have a right to a lifetime use right to any or all of the land (house, household garden, etc.)? Is land specifically mentioned?
  • How/who decides which land?  What are the requirements?
  • Are different use rights (e.g. the right to collect herbs or graze animals) accounted for?  
  • Is there a right of survivorship (one spouse automatically inherits the whole of the land they hold in common ownership or joint tenure)?
  • If yes, does it only apply to married couples or to all people who have joint rights to land?
  • If it only applies to married couples, what proof of marriage is required?
  • If there is not a right of survivorship, how is inheritance of jointly held property handled?
  • Are there limits to physical partition of property in this or any other law?
  • TIP: This may mean that if there is not a right of survivorship and that a widow will have a share in property with other heirs, which can impact her rights to transfer or her decision-making on the land she has inherited.

Inheritance for Wives: Intestate Succession

Note on marital property: If there is more than one marital property regime (or family law) that applies in the context, an analysis of each of these laws will be required, and that will also require answering each of the below questions for each law.

 

  • What do the intestate inheritance provisions say about wives’ inheritance?
  • If wives inherit, what land is included? What is not? Is the family home included?
  • What percentage of a husband’s property do wives inherit if she has children?
  • What percentage of a husband’s property do wives inherit if she has no children?
  • Are there any procedures which must be followed to ensure inheritance provisions apply? For example, must the death be registered and death certificate received?
  • Are the intestate provisions for spouses triggered only when there is a formal marriage?
  • If yes:
  • *What constitutes a formal (statutory) marriage?
  • *What documents are required for proof of marriage?
  • *What documents are required to register a marriage (birth certificates, residency certificates, etc.)?
  • If no:
  • What other types of marriages trigger the intestate law (e.g. customary or religious)?
  • What is required for proof of these marriages? 
  • Can a wife be disinherited completely by will?
  • If no, what is the mandatory set aside for wives?
  • If yes, are there any other protections for her (e.g. use of family home until she dies or remarries)?

Inheritance for Wives: Polygamy

Note on marital property: If more than one marital property regime (or family law) is applicable, an analysis of each of these laws will be required and you will need to answer each of the below questions for each law.

 

  • TIP: If the law does not state that polygamy is legal it may be presumed or interpreted by reference to the context. For example, if the law recognizes customary marriages as legitimate, and everyone knows that polygamy is permitted under customary law, then it can be said that polygamy is “legal” for customary marriages, noting that this may not mean that it is also legal for formal marriages.
  • *If yes, is it legal under all laws or only certain laws (for Muslims or customary marriages, etc.)?
  • *Is there a limit to the number of wives a husband can have?  Are there any other limitations?
  • Are there provisions in the inheritance law for more than one wife? 
  • If yes, how is land (or other property) divided between the wives? Is land referred to specifically?
  • Are there provisions related to the children of more than one wife?
  • If yes, how is land (or other property) divided between the children?  Is land referred to specifically?

Inheritance for Daughters

  • What do the intestate inheritance provisions say about daughters’ inheritance?  Do daughters have a right to inherit?
  • Are daughters and sons both considered heirs by law? Are they heirs of the same order?
  • If yes, do daughters and sons have an equal right to inherit property?  Does this apply to movable and immovable property?
  • Do the intestate provisions specifically mention a daughter’s right to inherit land?
  • Are a daughter’s rights to inherit affected by her marital status or a by a change in her marital status?
  • What are the rights to inherit of a daughter from a subsequent wife in a polygamous relationship?
  • Limitations on a daughter’s inheritance:
  • Is there any type of land a daughter cannot inherit (e.g. ancestral land)?
  • Are there any limits to the size of land that can be physically partitioned? (Note: this would not just be in the inheritance law—also check the land law or other laws)
  • What does the law say about distribution of resources, and rights to those resources, if land cannot be physically partitioned?
  • Can children (either males or females) be completely disinherited by will or by law (intestate)?
  • If yes, are there specific grounds?
  • Is there a mandatory set aside for children (meaning that they cannot be fully disinherited by will)?
  • If yes, what portion of the inheritance must be set aside?
  • If yes, does this impact or relate back to inheritance in any way? 
  • Is dowry or brideprice prohibited by law? If there is no prohibition, does the law attempt to restrict or otherwise regulate the practice(s)?

Inheritance Transfers

  • What process is required to legally recognize the transfer of land rights that occur via inheritance? Are any documents such as a land title, deed or certificate required?  Is a death certificate required?
  • How is a transfer of land rights by inheritance documented? Are transfers of land rights by inheritance registered?
  • If so, where?  Is this different for intestate and testate inheritance?
  • What is the process required to formalize an inherited right to land?—where do people go, what is required for proof, etc.?
  • Which court or forum (informal or formal) has jurisdiction to hear inheritance disputes?
  • Does the law recognize decisions by non-formal customary or religious courts/dispute resolution bodies on inheritance disputes?

Enforcement

  • What forums have statutory jurisdiction to hear inheritance related property or land rights cases? (e.g. formal courts, courts of special jurisdiction, traditional dispute resolution actors recognized for certain cases, etc.)
  • If there are multiple legal systems that deal with marital property, what is the process for determining which law and adjudicative body applies?
  • Do women and men have equal rights to decide which law or adjudicative body applies?
  • Are there barriers or disadvantages to women accessing the formal system of adjudication? I.e. fees, assumption of literacy (does something need to be written), identification documents, etc.