Ask a lawyer:
what does the law of succession say about inheritance for adopted children and those born out of wedlock?

Introduction

This response will address the question of inheritance for adopted children and those born out of wedlock in Kenya, drawing upon the relevant provisions of the Law of Succession Act, the Children Act, and the Constitution of Kenya.

Table of Contents

1. Sources

2. Inheritance for Adopted Children

   1. Legal Status of Adopted Children

   2. Inheritance Rights of Adopted Children

3. Inheritance for Children Born Out of Wedlock

   1. Legal Status of Children Born Out of Wedlock

   2. Inheritance Rights of Children Born Out of Wedlock

4. Conclusion

Sources

• The Law of Succession Act, Cap. 160, Laws of Kenya

• The Children Act, No. 8 of 2001

• The Constitution of Kenya, 2010

Inheritance for Adopted Children

1.1 Legal Status of Adopted Children

The Children Act, 2001, defines adoption as the legal process by which a person assumes the parental rights and responsibilities for a child who is not their biological offspring. The Act emphasizes that adopted children have the same legal status as biological children, enjoying equal rights and protections under the law.

• Section 129 of the Children Act, 2001: "An adoption order shall have the effect of severing all legal ties between the child and his or her biological parents and creating a new legal relationship between the child and the adoptive parents."

1.2 Inheritance Rights of Adopted Children

The Law of Succession Act, 2010, explicitly grants adopted children the same inheritance rights as biological children. This means that adopted children are entitled to inherit from their adoptive parents, just as biological children would.

• Section 38 of the Law of Succession Act, 2010: "An adopted child shall, for the purposes of intestate succession, be deemed to be a child of the adoptive parents and shall be entitled to inherit from the adoptive parents as if he or she were a child born to them in wedlock."

Inheritance for Children Born Out of Wedlock

2.1 Legal Status of Children Born Out of Wedlock

The Constitution of Kenya, 2010, guarantees equal rights and protection for all children, regardless of their birth status. This includes children born out of wedlock, who are recognized as having the same legal rights as children born within marriage.

• Article 53(1) of the Constitution of Kenya, 2010: "Every child has the inherent right to life and shall be protected from exploitation, abuse and harmful practices."

• Article 27(4) of the Constitution of Kenya, 2010: "The State shall ensure that the law does not discriminate against any person on the grounds of birth."

2.2 Inheritance Rights of Children Born Out of Wedlock

The Law of Succession Act, 2010, provides clear provisions for the inheritance rights of children born out of wedlock. These children are entitled to inherit from their biological parents, even if the parents were not married at the time of the child's birth.

• Section 39 of the Law of Succession Act, 2010: "A child born out of wedlock shall be entitled to inherit from his or her biological parents as if he or she were a child born in wedlock."

Conclusion

The Kenyan legal framework ensures that both adopted children and children born out of wedlock have equal inheritance rights. This principle of equality is enshrined in the Constitution and further elaborated upon in the Law of Succession Act. These provisions guarantee that all children, regardless of their birth circumstances, are treated fairly and have access to their rightful inheritance.

Answered by mwakili.com

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