How Is an Intestate Estate Distributed Where the Deceased Leaves No Spouse or Children?

Article By Z.O.G

When a person dies without leaving a valid will, the distribution of their estate is governed by the intestacy provisions of the Law of Succession Act, Cap. 160.

A particularly important question arises where the deceased leaves neither a surviving spouse nor children. In such circumstances, who is entitled to inherit the estate?

Section 39 of the Law of Succession Act provides the statutory framework for determining the beneficiaries of such an estate. However, the provision must now be read alongside the Constitution of Kenya, 2010, particularly the constitutional guarantee of equality and freedom from discrimination.

This is significant following the High Court's decision in Ripples International v Attorney General & another; FIDA (Interested Party) (Constitutional Petition E017 of 2021) [2022] KEHC 13210 (KLR), in which the Court declared sections 39(1)(a) and (b) unconstitutional to the extent that they gave a father priority over a mother in inheriting the estate of an intestate child who died without a spouse or children.

The Statutory Framework Under Section 39

Section 39(1) of the Law of Succession Act provides that where an intestate has left no surviving spouse or children, the net intestate estate devolves upon the deceased's kindred in the prescribed order of priority.

The statutory order is:

1.      The father, or if deceased, the mother;

2.      Brothers and sisters, and any children of deceased brothers and sisters, in equal shares;

3.      Half-brothers and half-sisters, and any children of deceased half-brothers and half-sisters, in equal shares; and

4.      Relatives who are in the nearest degree of consanguinity, up to and including the sixth degree, in equal shares.

Where none of the persons identified under Section 39(1) survives, the estate devolves upon the State and is paid into the Consolidated Fund pursuant to Section 39(2).

The statutory hierarchy has continued to be recognised and applied by the courts in succession proceedings. See, for example, In re Estate of Nyanduga Land (Deceased) (Succession Cause 514 of 2011) [2025] KEHC 2710 (KLR) and In re Estate of Joseph Opondo alias Joseph Aguyo (Deceased) (Succession Cause 208 of 2012) [2023] KEHC 2781 (KLR).

However, the application of the first two categories has been fundamentally affected by constitutional jurisprudence.

The Constitutional Challenge to Section 39

Prior to the constitutional challenge, the wording of Section 39 created a clear hierarchy between the deceased's parents.

Where both parents were alive, the father took priority. The mother could inherit only where the father was deceased.

Thus, on a literal reading of the provision, the sequence was:

Father → Mother → Siblings → Half-siblings → Other relatives.

The constitutional validity of this distinction was challenged in Ripples International v Attorney General & another; FIDA (Interested Party) [2022] KEHC 13210 (KLR).

The petitioner argued that giving a father priority over a mother solely because of sex was discriminatory and inconsistent with the Constitution.

The High Court agreed.

What Did Ripples International Decide?

The High Court considered Sections 35(1)(b), 36(1)(b), 39(1)(a) and 39(1)(b) of the Law of Succession Act against the constitutional guarantees of equality and non-discrimination.

With respect to Section 39, the Court found that the provision discriminated between fathers and mothers by giving the father priority in inheriting the property of an intestate child who died unmarried and without children.

The Court held that the differential treatment was inconsistent with Article 27 of the Constitution, which guarantees equality and freedom from discrimination.

The Court consequently declared Sections 39(1)(a) and (b) unconstitutional.

Importantly, the Court did not declare the whole of Section 39 unconstitutional.

The decision specifically concerned the discriminatory preference given to fathers over mothers.

Equal Treatment of Fathers and Mothers

The practical consequence of Ripples International is that a surviving father cannot be accorded automatic priority over a surviving mother solely on account of his sex.

Both parents are entitled to equal constitutional protection.

The constitutional position is therefore materially different from the literal wording of the original Section 39.

Where a deceased person leaves no spouse or children but is survived by both parents, the law must be applied consistently with Article 27 of the Constitution and the declaration made in Ripples International.

This represents an important development in Kenyan succession law because it removes a gender-based distinction that historically placed mothers in a subordinate position to fathers when inheriting from the estate of a deceased child.

Why Article 27 Matters in Succession Matters

Article 27(1) of the Constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law.

Article 27(4) further prohibits discrimination on various grounds, including sex and marital status.

The High Court's decision in Ripples International demonstrates that succession legislation cannot be applied independently of these constitutional protections.

The Law of Succession Act predates the Constitution of Kenya, 2010. Where provisions of the Act conflict with constitutional rights, they must be interpreted and applied consistently with the Constitution.

The decision therefore illustrates the broader constitutional transformation of succession law in Kenya.

What Happens After the Parents?

Once the parental category has been addressed, Section 39 proceeds to brothers and sisters and the children of deceased brothers and sisters.

The provision places full siblings ahead of half-siblings.

Where there are surviving brothers and sisters, and children of deceased brothers and sisters, the law provides for distribution in equal shares.

For example, if the deceased leaves two surviving siblings and the children of a third sibling who predeceased the deceased, the estate does not simply pass to the two surviving siblings to the exclusion of the deceased sibling's children. The statutory provision expressly recognises the children of deceased brothers and sisters.

The precise distribution, however, may require consideration of the applicable rules concerning representation and the circumstances of the deceased siblings.

Half-Siblings and Their Children

Where there are no beneficiaries within the preceding category, Section 39(1)(d) provides for inheritance by half-brothers and half-sisters and the children of deceased half-brothers and half-sisters.

They inherit in equal shares subject to the statutory framework.

The distinction between full and half-siblings can therefore become important where a deceased person leaves a relatively complex family structure.

Relatives Within the Sixth Degree of Consanguinity

Where there are no surviving parents, siblings, half-siblings or qualifying children of deceased siblings, Section 39 extends succession to relatives in the nearest degree of consanguinity, up to and including the sixth degree.

This makes the determination of degrees of consanguinity particularly important in estates where the deceased left no immediate family.

The Probate and Administration Rules require succession applications in cases of total or partial intestacy to provide particulars of persons who would succeed under Section 39. The Rules also require reference to the applicable table for determining the degree of consanguinity.

This requirement is designed to ensure that the Court has sufficient information to identify persons who may be entitled to participate in the administration and distribution of the estate.

What If There Are No Surviving Relatives?

Section 39(2) provides a final destination for an estate where no qualifying relatives survive.

In such circumstances, the net intestate estate devolves upon the State and is paid into the Consolidated Fund.

The statutory scheme therefore establishes a complete hierarchy, moving from the closest qualifying relatives to more remote relatives and, ultimately, the State.

Beneficial Entitlement and the Right to Administer the Estate

It is important to distinguish between the right to inherit and the right to administer an estate.

Section 66 of the Law of Succession Act gives the Court final discretion in determining to whom a grant of letters of administration should be made, although it provides a general order of preference.

Persons entitled to the estate under Part V of the Act will ordinarily have priority over more remote persons.

In In re Estate of Mark Waswa Namwoso (Deceased) (Succession Cause 2 of 2020) [2025] KEHC 16083 (KLR), the High Court considered Section 39 alongside Section 66 and recognised the importance of the statutory order of preference in determining who should administer an intestate estate.

Consequently, a person who wishes to administer an estate should not assume that being a relative, by itself, is sufficient. The nature and degree of the relationship remain important.

Dependency May Also Be Relevant

Succession under Section 39 should also be considered alongside the provisions of the Law of Succession Act relating to dependants.

In appropriate circumstances, a person who does not fall neatly within the categories of Section 39 may seek relief based on dependency where the statutory requirements are satisfied.

However, dependency is a question of fact and must be established by evidence.

The courts have repeatedly emphasised that a person asserting dependency bears the evidential burden of demonstrating the basis of the claim.

This was recently reiterated in In re Estate of Joconia Opiyo alias Oyombi (Deceased) (Family Appeal E003 of 2024) [2025] KEHC 13264 (KLR).

Accordingly, the analysis of an intestate estate should not stop at identifying blood relatives. The particular circumstances of persons claiming an interest in the estate must also be examined.

The Significance of Ripples International for Women

The importance of Ripples International extends beyond the immediate wording of Section 39.

The decision forms part of the broader constitutional movement towards eliminating discriminatory provisions in succession law.

The Court also declared unconstitutional the provisions in Sections 35(1)(b) and 36(1)(b) concerning the termination of a widow's life interest upon remarriage, finding that the provisions treated widows differently from widowers.

Although those provisions concern different circumstances from Section 39, the underlying constitutional principle is the same: succession rights must comply with the constitutional guarantee of equality.

The decision therefore represents an important affirmation that customary or statutory assumptions concerning gender cannot override constitutional rights.

Practical Implications for Families

Where a person dies intestate without a spouse or children, the family should carefully establish the deceased's family tree before applying for a grant.

The following questions should ordinarily be addressed:

• Did the deceased leave a surviving spouse?
• Did the deceased leave biological or legally recognised children?
• Are either or both parents alive?
• Did the deceased leave full siblings?
• Are there children of any deceased siblings?
• Are there half-siblings or children of deceased half-siblings?
• Are there other relatives within the sixth degree of consanguinity?
• Are there persons who can establish dependency?
• Are there existing succession proceedings concerning the estate?
• Has any person already obtained a grant without disclosing all persons with an interest in the estate?

Proper identification of beneficiaries is critical.

Failure to disclose persons who are entitled to benefit from an estate may expose a grant to challenge and possible revocation under Section 76 of the Law of Succession Act.

The Importance of Full Disclosure

Succession proceedings are proceedings in which the Court expects candour from those seeking grants of representation.

An applicant should not deliberately omit persons who rank equally or higher in the statutory order of succession.

The importance of disclosure is reinforced by the Probate and Administration Rules, which require an applicant to provide particulars of persons who would succeed under Section 39 where the deceased left no spouse or children.

The objective is to enable the Court to make an informed decision regarding administration and eventual distribution of the estate.

Conclusion

Where a person dies intestate without a surviving spouse or children, Section 39 of the Law of Succession Act provides the starting point for determining who is entitled to the deceased's net intestate estate.

The statutory order proceeds through the deceased's parents, siblings and their children, half-siblings and their children, and other relatives within the sixth degree of consanguinity before ultimately providing for the estate to devolve upon the State where no qualifying relative survives.

However, the original wording of Section 39 cannot now be applied mechanically.

The decision in Ripples International v Attorney General & another; FIDA (Interested Party) [2022] KEHC 13210 (KLR) fundamentally altered the application of Sections 39(1)(a) and (b) by declaring unconstitutional the statutory preference given to fathers over mothers.

The broader principle is clear: succession rights must be interpreted and applied consistently with the Constitution, particularly the right to equality and freedom from discrimination.

For families dealing with intestate estates, the practical lesson is equally important. Establishing the correct beneficiaries requires more than simply identifying the closest male relative. The deceased's entire family structure, potential dependants and the constitutional rights of all beneficiaries must be considered.

In succession matters, therefore, the family tree remains important—but it must be read through the lens of the Constitution.

Key Authorities

• Ripples International v Attorney General & another; FIDA (Interested Party) (Constitutional Petition E017 of 2021) [2022] KEHC 13210 (KLR).
• In re Estate of Nyanduga Land (Deceased) (Succession Cause 514 of 2011) [2025] KEHC 2710 (KLR).
• In re Estate of Joseph Opondo alias Joseph Aguyo (Deceased) (Succession Cause 208 of 2012) [2023] KEHC 2781 (KLR).
• In re Estate of Mark Waswa Namwoso (Deceased) (Succession Cause 2 of 2020) [2025] KEHC 16083 (KLR).
• In re Estate of Joconia Opiyo alias Oyombi (Deceased) (Family Appeal E003 of 2024) [2025] KEHC 13264 (KLR).

Disclaimer: This article is intended for general information only and does not constitute legal advice. Succession rights are dependent on the facts of each estate, and persons dealing with an intestate estate should obtain appropriate legal advice before taking steps to administer or distribute the estate.