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Does your next of kin matter?

Friday February 03 2012
willpix

PHOTO/FILE Many spouses aren’t aware their significant other does not even consider them as their next of kin.

Six years ago, Maryanne Kariuki was a disturbed wife. Working at a local airline, her husband had just been retrenched on medical grounds.

Despite the loss of income, this is not what worried her most. While she was helping to sort out his documents with his employer, she realised she was not his ‘next of kin’. He had slotted in his mother.

“I was jolted. It got me thinking hard. If he had died, would it mean that I stood no chance of inheriting his property or his dues?” poses Maryanne, who asks us not to take her pictures for the sake of her school going children.

So when she changed jobs in 2008 and joined a government institution, she also did not indicate her husband as her next of kin.

That honour went to her 16-year-old son. “We really do not have major problems in our marriage but I just found it safer to have my child as the next of kin,” she says. The Kariukis have been married since 1995.

Maryanne is one of the emerging income-earning women who are excluding their husbands from their own investments.

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Two years ago, she took a sacco loan and bought two cars for hire.

Two years earlier, she had bought a plot in Kajiado. Last week, she showed Saturday Magazine the properties’ documents.

They are all in her name. The big question is: Does all this have legal backing in law? Should it worry you that your spouse does not consider you their next of kin?

Equal rights

Although at an advanced stage, the Matrimonial Property Bill is yet to be enacted in Kenya.

The Bill tackles critical issues touching on matrimonial property and tackles what a spouse would be entitled to in case the marriage was dissolved.

Currently, according to Section 45(3) of the constitution, both spouses are entitled to equal rights. These rights are extended to the time of the dissolution of the marriage.

Today, many spouses aren’t aware their significant other does not even consider them as their next of kin, ostensibly to lock them out of benefits.

At the social and/or informal level, the next of kin is perceived to be the “most important person to you who is supposed to be in charge of your investments.”

Those who deny their spouses this responsibility by not declaring them the next of kin may not be aware it is not very helpful.

Mr JM Waiganjo of Waiganjo & Co Advocates explains: “This is the closest person to you who should be contacted in case of your death or serious injury, or whenever unable to act for yourself. He/she may not necessarily be your spouse or a blood relative.”

Legally speaking, one can nominate whoever they choose to be the next of kin. “The chosen person, however, must agree to the nomination as next of kin, otherwise it is invalid,” adds the lawyer.

However, being someone’s next of kin does not imply one stands to inherit any of the individual’s estate in case they die.

Should you worry that you are not your spouse’s next of kin? The answer is both yes and no, according to lawyers.

"Yes, because it shows a lack of trust. Why should someone think his or her spouse is not best suited to take care of their family’s interests when gone?” poses Mr Waiganjo.

Another Nairobi lawyer Robert Muriuki, says a spouse can only get away with excluding their spouse from investments if the excluded spouse is not aware of the property.

He says women have the right to buy property for whoever they want, including their parents and children, and a spouse can only claim it if they can prove there was an element of fraud.

"Sometimes a wife can use her husband’s resources and register them in other people’s names. Here, the husband can claim a stake in it,” Mr Muriuki says.

No next of kin

Legally married people, the lawyer says, can prove indirect contribution towards an investment. "In fact, this argument has been a subject of many legal wins by plaintiffs in matrimonial cases,” says Mr Muriuki.

Mrs Mercy Odongo, a lawyer who works in the human resources department of a private sector company, says the Law of Succession mentions survivors and dependants and not next of kin.

“The issue of next of kin is only considered when the deceased dies without a will (intestate),” she says.

Mrs Odongo emphasises that the next of kin does not need to be a beneficiary of the deceased’s estate.

"In deciding a deceased’s beneficiary where there is no will, priority is given to the relatives. A friend can be a next of kin but is not a direct beneficiary to the estate,” says the lawyer.

Family comes first

In the corporate world, Mr Muriuki says, employers seek the next of kin to execute relevant documents or give consent to any instructions that may be needed. “This does not include decisions on the deceased’s estates,” the lawyer explains.

Mr Waiganjo says that couples keen to safeguard their children’s futures may not know that their own children come second to spouses in the hierarchy of beneficiaries.

After children come one’s father, followed by mother, brothers or sisters and their children, in that order.To further demonstrate that the next of kin isn’t legally a strong contender for inheritance, he or she does not carry the debts of a deceased person.

“Liabilities are settled from the deceased’s estate and the next of kin is not actually the executor of a will unless explicitly named so in a court,” says Waiganjo.Mr Muriuki says exclusive registration of a property in one’s name does not deny your legal husband or wife from enjoying it.

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