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Naomi Mutinda, Adv.Feb 28, 2025Succession & Family Protection

The Rights of a Surviving Spouse

Protecting the family home from "property grabbing" relatives

Widow with children at home

After the death of a spouse, surviving wives and husbands often face harassment from in‑laws who try to evict them or take over the family home – a practice known as “property grabbing”. Kenyan law offers strong protection to surviving spouses under the Law of Succession Act, the Matrimonial Property Act, and the Constitution. This article explains the key rights of a surviving spouse and steps to assert them.

Lifetime interest: Section 35(1)(a) of the Law of Succession Act gives a surviving spouse a life interest in the whole of the estate (including the family home) if there are children. The home cannot be sold or partitioned during the spouse's lifetime.

Key Rights Under Succession Law

  • If there are children: Surviving spouse gets the personal effects (clothes, jewellery) and a life interest in the whole residue. Upon the spouse's death, children inherit equally.
  • If no children but parents alive: Spouse gets 50% of the net estate, parents 50%.
  • If no children, no parents, but siblings: Spouse gets 50%, siblings 50%.
  • If no surviving relatives: Spouse inherits the entire estate.

Protection of the Family Home

The Matrimonial Property Act defines the family home as any property that has been used as a residence by the family. A surviving spouse cannot be evicted from the family home without their consent or a court order, even if the home was registered solely in the deceased's name. Relatives who try to take over the house can be charged with criminal trespass.

Remedy: File a petition for Letters of Administration immediately to become the legal administrator of the estate. Then apply for an injunction to restrain any relative from interfering with the home.

What to Do If Relatives Are Grabbing Property

  1. Report to the nearest police station and obtain an OB number.
  2. Apply for temporary injunction at the Environment and Land Court or High Court.
  3. Lodge a caveat at the land registry to prevent any transfer of title.
  4. File succession proceedings and apply to become the administrator.
"No relative, however close, has the right to evict a widow or widower from their matrimonial home. The law is on your side – do not be intimidated." — Naomi Mutinda, Advocate

Musyoka & Mutinda Advocates provides urgent legal aid to surviving spouses facing eviction or property grabbing. We also offer will drafting and estate planning to prevent such conflicts.