Condensed: Inequality in inheritance rights impact the ability of individuals from certain groups to benefit on the same terms as other groups from the transfer of wealth and property upon the death of one’s family members. Unequal inheritance manifests as discrimination in (a) who is allowed to inherit and (b) the shares of such inheritance. These limitations often affect women and children, and may result from customs and social norms prevalent in particular societies. Such laws and practices may result in women and girl children receiving a smaller share of their father’s property compared to what sons would receive. This is particularly the case for married women. In some cases, women are granted limited and controlled rights over the property inherited. Cultural practices such as ‘wife inheritance’ are also discriminatory in themselves, and also exacerbate women’s access to property. Unequal inheritance against children born out of wedlock also constitutes discrimination. Discrimination against women in terms of their ability to pass on nationality to their children affects the inheritance rights of their children in some countries resulting in discrimination against them, too. Comprehensive: Inequality in inheritance rights impact the ability of individuals from certain groups’ to benefit on the same terms as other groups from the transfer of wealth and property upon the death of one’s family members. Unequal inheritance manifests as discrimination in (a) who is allowed to inherit and (b) the shares of such inheritance. Various provisions protect the rights of women to hold property on a basis of equality with men.[1] Laws and practices that result in discrimination against women in terms of inheritance and holding of property contravene CEDAW.[2] These limitations often affect women and children, and may result from customs and social norms prevalent in particular societies. Such laws and practices may result in women and girl children receiving a smaller share of their father’s property compared to what sons would receive. This is particularly the case for married women. In some cases, women are granted limited and controlled rights over the property inherited.[3] The Protocol to the ACHPR on the Rights of Women in Africa specifically mentions the right of widows to remain in the matrimonial house and to retain ownership of the house even after remarriage if she already owns it or has inherited it.[4] In South Africa, the Constitutional Court found in the case of Bhe and Others v The Magistrate, Khayelitsha and Others that the customary rule of male primogeniture (ie where the eldest surviving son of a deceased or, in the absence of a son, another male blood relative inherits the deceased’s property) unlawfully excludes widows, daughters, younger sons and extra-marital children.[5] Laws and practices that discriminate against women and girls find their basis in culture or religion.[6] Some cultural beliefs encourage unequal inheritance, such as conceptions of traditional male roles as property owners,[7] and as the carriers of the family lineage. Religious precepts can also form the basis of discriminatory practices against women such as Koranic prescriptions that do not treat men and women, or boys and girls equally in matters of inheritance.[8] In some instances, women are not allowed to own property, particularly agricultural property that is reserved for male heirs, but may be compensated with moveable assets and goods.[9] Practices such as these may reflect local customs and colonial laws in contradiction even of religious prescriptions.[10] Within the context of marriage, discrimination with respect to inheritance rights also intersects with discrimination with respect to rights over marital property. For women who are widowed, the phenomenon of not being allowed to ‘inherit’ the deceased husband’s property is itself a reflection of women’s too often non-existent rights over marital property, which in and of itself discriminates against them. Cultural practices such as ‘wife inheritance’ are also discriminatory in themselves, *see marriage without free and full consent* and also exacerbate women’s access to property. For example, widows who refuse to have sexual relations with their ‘inheritor’ risk being violently and forcibly evicted from their homes, and left destitute.[11] Patrilineal patterns of inheritance could result in economic destitution of widows and divorced women, for example, amongst indigenous communities because women are excluded from decision-making in land transactions and the administration of communal ownership and group ranches.[12] *See *equal rights to property in marriage*; *participation in decision-making processes* Unequal inheritance against children born out of wedlock also constitutes discrimination.[13] (see *discrimination based on birth*). In Marckx v Belgium, the ECtHR found that Belgian legislation that differentiated between the capacity of ‘legitimate’ and ‘illegitimate’ children to receive and inherit property from their parents was discriminatory.[14] In addition, the necessity placed on mothers of children born out of wedlock to adopt their children in order to eliminate the said difference, as well as the different capacities of married women against unmarried women to pass on property to their children also amounted to discrimination.[15] Discrimination against women in terms of their ability to pass on nationality to their children affects the inheritance rights of their children in some countries resulting in discrimination against them, too.[16] See *inequality of men and women with respect to children’s nationality*. In Namibia, the large number of customary marriages that were not registered resulted in the deprivation of women and children of their rights, including inheritance and land ownership rights.[17] [1] CEDAW art 15; ICESCR art 3; ACHPR art 18(3); CERD art 5 (v),(vi); Protocol to the ACHPR on the Rights of Women in Africa arts 2, 21; Commission on Human Rights Resolution 2005/25 of 15 April 2005; Commission on the Status of Women Resolution 42/1.
[5] Case CCT 49/03, Constitutional Court of South Africa (15 October 2004).
[6] Special Rapporteur on Freedom of Religion or Belief ‘Study on freedom of religion or belief and the status of women in the light of religion and traditions’ E/CN.4/2002/73/Add.2 para 141.
[7] Special Rapporteur on violence against women, its causes and consequences ‘Cultural practices in the family that are violent towards women’ E/CN.4/2002/83 para 71.
[8] Special Rapporteur on Freedom of Religion or Belief ‘Study on freedom of religion or belief and the status of women in the light of religion and traditions’ E/CN.4/2002/73/Add.2 para 142.
[9] Special Rapporteur on Freedom of Religion or Belief ‘Study on freedom of religion or belief and the status of women in the light of religion and traditions’ E/CN.4/2002/73/Add.2 para 144.
Inequality in inheritance rights impact the ability of individuals from certain groups to benefit on the same terms as other groups from the transfer of wealth and property upon the death of one’s family members. Unequal inheritance manifests as discrimination in (a) who is allowed to inherit and (b) the shares of such inheritance. These limitations often affect women and children, and may result from customs and social norms prevalent in particular societies. Such laws and practices may result in women and girl children receiving a smaller share of their father’s property compared to what sons would receive. This is particularly the case for married women. In some cases, women are granted limited and controlled rights over the property inherited.
Cultural practices such as ‘wife inheritance’ are also discriminatory in themselves, and also exacerbate women’s access to property. Unequal inheritance against children born out of wedlock also constitutes discrimination. Discrimination against women in terms of their ability to pass on nationality to their children affects the inheritance rights of their children in some countries resulting in discrimination against them, too.
Comprehensive:
Inequality in inheritance rights impact the ability of individuals from certain groups’ to benefit on the same terms as other groups from the transfer of wealth and property upon the death of one’s family members. Unequal inheritance manifests as discrimination in
(a) who is allowed to inherit and
(b) the shares of such inheritance.
Various provisions protect the rights of women to hold property on a basis of equality with men.[1] Laws and practices that result in discrimination against women in terms of inheritance and holding of property contravene CEDAW.[2] These limitations often affect women and children, and may result from customs and social norms prevalent in particular societies. Such laws and practices may result in women and girl children receiving a smaller share of their father’s property compared to what sons would receive. This is particularly the case for married women. In some cases, women are granted limited and controlled rights over the property inherited.[3] The Protocol to the ACHPR on the Rights of Women in Africa specifically mentions the right of widows to remain in the matrimonial house and to retain ownership of the house even after remarriage if she already owns it or has inherited it.[4]
In South Africa, the Constitutional Court found in the case of Bhe and Others v The Magistrate, Khayelitsha and Others that the customary rule of male primogeniture (ie where the eldest surviving son of a deceased or, in the absence of a son, another male blood relative inherits the deceased’s property) unlawfully excludes widows, daughters, younger sons and extra-marital children.[5]
Laws and practices that discriminate against women and girls find their basis in culture or religion.[6] Some cultural beliefs encourage unequal inheritance, such as conceptions of traditional male roles as property owners,[7] and as the carriers of the family lineage. Religious precepts can also form the basis of discriminatory practices against women such as Koranic prescriptions that do not treat men and women, or boys and girls equally in matters of inheritance.[8] In some instances, women are not allowed to own property, particularly agricultural property that is reserved for male heirs, but may be compensated with moveable assets and goods.[9] Practices such as these may reflect local customs and colonial laws in contradiction even of religious prescriptions.[10]
Within the context of marriage, discrimination with respect to inheritance rights also intersects with discrimination with respect to rights over marital property. For women who are widowed, the phenomenon of not being allowed to ‘inherit’ the deceased husband’s property is itself a reflection of women’s too often non-existent rights over marital property, which in and of itself discriminates against them.
Cultural practices such as ‘wife inheritance’ are also discriminatory in themselves, *see marriage without free and full consent* and also exacerbate women’s access to property. For example, widows who refuse to have sexual relations with their ‘inheritor’ risk being violently and forcibly evicted from their homes, and left destitute.[11] Patrilineal patterns of inheritance could result in economic destitution of widows and divorced women, for example, amongst indigenous communities because women are excluded from decision-making in land transactions and the administration of communal ownership and group ranches.[12] *See *equal rights to property in marriage*; *participation in decision-making processes*
Unequal inheritance against children born out of wedlock also constitutes discrimination.[13] (see *discrimination based on birth*). In Marckx v Belgium, the ECtHR found that Belgian legislation that differentiated between the capacity of ‘legitimate’ and ‘illegitimate’ children to receive and inherit property from their parents was discriminatory.[14] In addition, the necessity placed on mothers of children born out of wedlock to adopt their children in order to eliminate the said difference, as well as the different capacities of married women against unmarried women to pass on property to their children also amounted to discrimination.[15]
Discrimination against women in terms of their ability to pass on nationality to their children affects the inheritance rights of their children in some countries resulting in discrimination against them, too.[16] See *inequality of men and women with respect to children’s nationality*. In Namibia, the large number of customary marriages that were not registered resulted in the deprivation of women and children of their rights, including inheritance and land ownership rights.[17]
[1] CEDAW art 15; ICESCR art 3; ACHPR art 18(3); CERD art 5 (v),(vi); Protocol to the ACHPR on the Rights of Women in Africa arts 2, 21; Commission on Human Rights Resolution 2005/25 of 15 April 2005; Commission on the Status of Women Resolution 42/1.
[2] CEDAW General Recommendation 21, para 35.
[3] CEDAW General Recommendation 21, para 35.
[4] Art 21.
[5] Case CCT 49/03, Constitutional Court of South Africa (15 October 2004).
[6] Special Rapporteur on Freedom of Religion or Belief ‘Study on freedom of religion or belief and the status of women in the light of religion and traditions’ E/CN.4/2002/73/Add.2 para 141.
[7] Special Rapporteur on violence against women, its causes and consequences ‘Cultural practices in the family that are violent towards women’ E/CN.4/2002/83 para 71.
[8] Special Rapporteur on Freedom of Religion or Belief ‘Study on freedom of religion or belief and the status of women in the light of religion and traditions’ E/CN.4/2002/73/Add.2 para 142.
[9] Special Rapporteur on Freedom of Religion or Belief ‘Study on freedom of religion or belief and the status of women in the light of religion and traditions’ E/CN.4/2002/73/Add.2 para 144.
[10] As above.
[11] Special Rapporteur on violence against women, its causes and consequences: Mission to Ghana A/HRC/7/6/Add.3 para 72
[12] Special Rapporteur on situation of human rights and fundamental freedoms of indigenous peoples: Mission to Kenya A/HRC/4/32/Add.3 para 81.
[13] CESCR Concluding Observations Japan E/C.12/1/Add.67 para 14.
[14] Marckx v Belgium application 6833/74 (ECtHR 1979) para 55. See also Mazurek v France application 34406/97 (ECtHR 2000).
[15] Marckx v Belgium application 6833/74 (ECtHR 1979) para 64.
[16] HRC Concluding Observations Egypt CCPR/CO/76/EGY para 10.
[17] HRC Concluding Observations Namibia CCPR/CO/81/NAM para 9.