Inequitable Inheritance

Definition

Inequitable intestate succession practices and laws (dealing with after-death property distribution not controlled by a will) institute a deliberate disparity between the amount of inheritance received by a woman and the amount inherited by a man.  Although such laws often entitle a wife or daughter to some property after the death of a husband or male relative, the laws discriminate against women by entitling a daughter only to half the inheritance that a son would receive, giving male relatives or spouses the right to administer womens wealth, requiring estates to distribute property only after consulting male beneficiaries, or prohibiting women from owning certain types of property (e.g. land).  Discriminatory inheritance laws may be part of religious or customary systems that are incorporated into civil law or that exist as an alternative form of law available to some populations. 

Links to Reproductive Health

Inheritance practices and laws that discriminate between women and men perpetuate economic discrimination against women, thus violating womens human rights and adversely affecting womens reproductive health.  Economic well-being fosters physical and mental health, as demonstrated by the correlation between peoples health status and their levels of personal wealth.[1]  In particular, economic well-being sets the conditions for womens bettered reproductive health.  Higher economic status permits girls school attendance, resulting in womens literacy.  Literacy, in turn, enhances womens agency, or command over their lives, resulting in reduced fertility and lower mortality rates for children under five.[2] 

Poverty is a barrier to good health, and a societys lack of decent living standards is strongly associated with the societys level of gender inequality.[3]  (Though, even when a country is very poor in terms of income poverty, it can still achieve a relative level of gender equality according to basic indicators for human development.)  Continued discrimination against women in all matters relating to land and property, including inheritance, is the single most critical factor in the perpetuation of gender inequality and womens poverty.[4]

Through stripping them of their homes, lands, and other property, inequitable inheritance practices may condemn women to an early death from AIDS.[5]  Women lose assets crucial to decreasing their vulnerability to HIV and, for HIV positive women, assets necessary for their care and shelter.   In order to keep their property, widows may have to undergo customary "wife inheritance" or "cleansing" rituals which involve unprotected sex, putting them at risk of contracting and spreading HIV.[6]

Human Rights Implicated

Inheritance laws restricting womens equal access to resources abuse womens right to health.  Additionally, such laws violate countries obligations to uphold other rights, including:

Right to non-discrimination on the grounds of sex or gender - Under human rights law, countries must accord to women equal rights in property ownership, acquisition, management, administration, enjoyment, and disposition.

Right to development - Women are entitled to access to, control of, and use of productive resources.  Gender asymmetry in land inheritance and ownership is one of the main obstacles to the full participation of women in rural development.[7]  When a woman is denied the right to inherit land or property, she is often denied the means to ensure her and her familys livelihood. [8]  Further, women who are denied inheritance rights are often forcibly evicted from their homes and lands. 

Forced eviction is a "gross violation of human rights,"[9] in particular the right to housing.[10]

Right to property: Individuals have the right to own property alone as well as in association with others and no one can be arbitrarily deprived of his or her property.

Individuals also have the right to non-discrimination. Women and men, therefore, have equal rights to enjoy the right to property and countries need to take steps to ensure that statutory and customary laws are gender sensitive. The right to property also includes: the right to property in marriage; and the right to property in case of separation, divorce or annulment of marriage.

• The right to property in marriage: Women and men have equal rights within marriage with respect to the ownership, acquisition, management, administration, enjoyment and disposition of property.
• The right to property in case of separation, divorce or annulment of marriage: Women and men have the right to equitable sharing of joint property deriving from the marriage, in the case of separation, divorce or annulment.

The right to inheritance: The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, added in 2003, gives a widow the right to an equitable share in the inheritance of her husband's property. She also has the right to continue to live in the matrimonial home. If she remarries, she retains this right if she owns or has inherited the house. The protocol goes further to protect the inheritance rights of girl children by stating that women and men have the right to inherit in equitable shares. This provides equal inheritance rights for female and male children.

The right to an adequate standard of living: This right includes: the right to equitable distribution of food; the right to access to safe drinking water and sanitation; the right to adequate housing; and the right to a safe and healthy environment.

Inequitable inheritance and property rights, including home ownership, access to property and accommodation violates the right to adequate housing. After being evicted from their homes due to inequitable inheritance laws and practices, women are left without adequate housing and livelihoods.

Relevant Human Rights Documents

The Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) calls on countries to prohibit property and inheritance practices that favor the husband or his heirs over the wife.  CEDAW requires in Article 2(f) that State Parties modify or abolish existing laws, regulations, customs, and practices that discriminate against women.  In particular, Article 16(h) mandates that countries eliminate discrimination against women in all matter relating to marriage and family relations, in particular ensuring that both spouses have the same rights in the ownership, acquisition, management, administration, enjoyment, and disposition of property.

Additionally, the United Nations, through its Sub-Commission on the Promotion and Protection of Human Rights, issued non-binding but persuasive Resolution 1998/15 urging that governments amend and/or repeal laws and policies pertaining to land, property and housing which deny women security of tenure and equal access and rights to land, property and housing, & encourage the transformation of customs and traditions which deny women security of tenure and equal access and rights to land, property and housing, and &adopt and enforce legislation which protects and promotes women's rights to own, inherit, lease or rent land, property and housing.  

Key Human Rights Arguments You Could Use

Access to economic resources is essential for peoples well-being. Therefore, ensuring women's full enjoyment of their human rights is a crucial strategy for the empowerment of women and for overcoming the economic, political, and social disadvantages they face. Women's equal access to resources and opportunities and equal treatment in economic and social life are, in turn, necessary for the full realization of their human rights.[11]

Some seek to defend inequitable inheritance practices by asserting that such rules are designed to distribute wealth and that each spouse is responsible for earning and holding separately her/his own wealth.  This argument ignores reality.  In many countries, women engage in the unpaid work of housekeeping and child rearing.  Women are either too busy to take paid work, or they are legally barred from working in the same paid professions as men.  Yet, womens unpaid work permits male relatives or spouses to earn money for labors outside the home.  Men thus earn income to support their wives and children.  Under an inequitable inheritance structure, though, when the man dies, his wife and female children are rendered destitute, having no separate wealth of their own.  The same legal standard should be applied to men and womens ownership of property during the marriage and inheritance of property after a spouses death.

Others argue that cultural sensitivities demand adherence to traditional inequitable inheritance practices.  Some countries even constitutionally permit discriminatory customary law to be applied to inheritance questions of certain ethnic groups.  Yet, the international community has become aware of the need to achieve equality between the sexes and of the fact that an equitable society cannot be attained if fundamental human rights of half of human society, women, continue to be denied and violated.[12]  Discriminatory inheritance practices expose women to poverty, violence, homelessness, and disease.  Particularly in sub-Saharan Africa, the raging HIV/AIDS epidemic thrives on women's property rights violations, risking the lives and well-being of millions of women and their dependants.[13]

Legal Remedies You Could Try

To fulfill their human rights-based obligations to foster equitable inheritance practices, countries must repeal inheritance laws that discriminate against women. 

·         Inequitable inheritance laws cannot exist as a possible alternative for certain populations. International law prohibits countries from maintaining dual systems of law, civil and traditional, and requires that countries adopt one standard applicable to all. 

·         Countries must ensure that the law sets out an effective remedy for violations of womens rights to non-discrimination in inheritance practices.  Countries could adopt a law similar to the model non-discriminatory law on inheritance at http://www.caricom.org/archives/inheritance.htm. 

Additionally, subjecting a country to international scrutiny is an effective way of pressing a country to modify laws and policies that permit human rights abuse.   

·         Advocates wishing to challenge a countrys inheritance laws may, as women from Zimbabwe have, lodge a complaint with the Committee on Economic, Social and Cultural Rights (ESCR), the U.N. body that oversees country compliance with the International Covenant on ESCR.  The Committee has recognized women's rights to inheritance within its analysis of the right to housing and guides countries adherence to this right.