When parents think about inheritance, the hope is simple. That every child will feel loved, remembered, and treated fairly. But in blended families where there may be children from previous relationships, adoption, or a new marriage, fairness isn’t always straightforward.
Remarriage, jointly owned property and beneficiary nominations can leave children from previous relationships with less than their parents intended.
Leah Ng’ang’a, an advocate in the Family Law and Estate Planning Department and managing partner at Ng’ang’a and Associates says “Kenyan law allows a property owner to structure their estate according to their wishes and the circumstances of their family.”
A parent may therefore decide to make different arrangements for different children while ensuring that all of them are protected. Family trusts, for instance, empower trustees to decide how and when to distribute income and capital to beneficiaries, providing flexibility to cater to children's different needs.
Do children have to inherit equally?
Under the Law of Succession Act, a parent’s will is not strictly bound to equal division of assets.
“A child or dependant who is left out of a will without any explanation by the parent can apply to court to be reasonably provided for,” Ms Ng’ang’a says.
However, if a parent dies without a will, the courts divide the assets equally among them because the law recognises all children, including those from previous relationships, as beneficiaries entitled to inherit from their deceased parent's estate, whether the parent was married, separated, or in a polygamous union.
“The law gives surviving spouses certain rights, but without a will, there is no authority for specific bequests or guardianship arrangements for minor children from different relationships, which can lead to complications,” she says.
Kenyan law recognises children, including those from previous relationships, as beneficiaries of their deceased parent’s estate. Children born outside marriage have also been protected by the Constitution from discrimination in inheritance.
“Children born out of wedlock have been constitutionally protected to inherit from their biological fathers following court rulings on the unconstitutionality of laws that previously discriminated against them.”
When a parent remarries
Remarriage can alter the succession picture, particularly where a parent has children from an earlier relationship.
A surviving spouse’s rights can affect what children from a previous relationship ultimately receive because they can affect the assets available for distribution, Ms Ng’ang’a says.
Parents who remarry should therefore review their wills, beneficiary nominations and property ownership arrangements to ensure they still reflect their intentions towards the current spouse and children from earlier relationships.This is particularly important for life insurance policies, pensions, Sacco accounts and other assets that have nominated beneficiaries.
Ms Ng’ang’a says some parents fail to update their wills and beneficiary nominations after remarriage or other changes in their family structure.
Joint ownership can also have unintended consequences.
“Property held jointly can automatically pass to the surviving owner when one owner dies. This can mean that the asset does not form part of the estate available for distribution to children or other beneficiaries.”
By contrast, where property is held as tenants in common, each owner’s share is divisible and can be passed on through a will or under the rules of succession.
What about children from a previous relationship?
A parent who has raised and supported a spouse’s children can also acquire parental responsibility towards them.
Ms Ng’ang’a says where a person accepts a current spouse’s children from another relationship, takes care of them and treats them as their own, the courts can, in certain circumstances, require that person to continue providing for the children.
“If such a person dies and leaves out such children from his or her will, the children can apply to the court as dependants to be provided for under the will.”
This makes the legal position more complicated than simply dividing an estate between biological children.
There have also been disputes involving customary and religious rules that historically discriminated against children born outside particular marriages. Kenyan courts have found some such provisions unconstitutional.
Can parents give children property before they die?
Parents do not have to wait until death to transfer part of their wealth to their children.
They can give assets to children during their lifetime through recognised gifts inter vivos, while leaving other property to be distributed later through a will or trust.
“If a person dies intestate, having given some children gifts inter vivos, the court in distributing the remaining estate shall take into consideration the gift inter vivos, but this does not mean that such children will not inherit from the remainder of the estate.”
Prenuptial and postnuptial agreements can also help clarify ownership of assets and distinguish individual property from matrimonial property, potentially protecting assets intended as a legacy for children.
What assets may bypass a will?
One of the biggest sources of confusion in succession planning is assuming that everything a person owns will be distributed according to their will.
Some assets can pass directly to nominated beneficiaries rather than through the estate.
Ms Ng’ang’a says these include retirement accounts, life insurance policies, pension benefits and some Sacco and bank accounts with designated beneficiaries.
Such nominations can therefore determine who receives the asset when the owner dies, making it important to keep beneficiary details consistent with the wider estate plan.
Why planning early matters
Many parents postpone estate planning and difficult conversations about money until old age or illness. This can result in rushed decisions, unmet expectations and family disputes.
A will prepared when a person is seriously ill may also be challenged on the grounds that they lacked the mental capacity to make it. For blended families, Ms Ng’ang’a says succession planning is therefore about more than deciding who gets the house, land or money.
It requires parents to consider how marriage, family relationships, property ownership, wills, trusts and beneficiary nominations interact—and to document those intentions clearly while they still have the opportunity to do so.
