Law, Culture and Women's Inheritance Rights in ... - Leitner Center

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The changes the Intestate Succession Law made to customary law were momentous: for the
first time, a surviving spouse had a legal claim to a portion of the estate. In matrilineal
communities, the changes were particularly dramatic, creating new rights for both the widow and
her children. As noted by one scholar, “[t]he Intestate Succession Law radically changes the law
of inheritance, and constitutes the most extensive legislative reform ever made in the private law
of Ghana.” [FN195] Not surprisingly, the statute has generated considerable confusion and
resistance even as it has improved the lot of widows and their children. Part III describes and
analyzes a number of problems that have arisen in the enforcement of Law 111 and offers
recommendations for promoting women's equality in inheritance as required by international
law.
*295 III. PROBLEMS AND RECOMMENDATIONS
In its present form, Law 111 has improved the lives of many women in Ghana by providing
for spousal rights in intestate succession, rights that were entirely absent under customary law.
Nevertheless, in the seventeen years since the adoption of Law 111, a number of problems have
emerged. This section analyzes many of these problems and makes recommendations as to how
they may be addressed in order to ensure women's equality in inheritance as required by
international law. [FN196] The first section addresses Law 111's failure explicitly to address
polygyny and explores the consequences for women who may be one of several widows with
claims on the estate. The second section analyzes problems of proof with respect to both the
status of the marriage and the nature of the property in the estate. The third section explores
problems in the administration of the estate, particularly problems that arise in connection with
the family's opposition to a widow's claim on the estate. Finally, the last section discusses
problems stemming from a lack of resources devoted to the enforcement of and education about
the statute.
A. The Structure and Interpretation of Law 111: The Problem of Polygyny
Law 111 is drafted in facially gender neutral terms but does not provide for the legal reality
of polygyny or the high incidence of extra-marital relations of men. [FN197] As a result, the law
is not in fact gender neutral. This Part will detail gender specific problems that arise when Law
111 is applied to polygynous marriages or to situations where children are born outside the
marriage.
Law 111 provides that the spouse and children of the intestate are entitled absolutely to the
household chattels and that, where the deceased's estate includes a house, the spouse and
children are entitled to the house and will hold it as tenants-in-*296 common. [FN198] If the
deceased left multiple houses, the spouse and children are entitled to choose one of the houses.
[FN199] The spouse and the children are also entitled to shares of the residue. [FN200] In
apportioning the estate, however, the statute makes no explicit provision for a man who dies
leaving multiple spouses and children from multiple mothers. In cases involving polygynous
unions courts might have interpreted the statute to award each spouse her matrimonial home and
the chattels therein. This approach would have been more consistent with the purposes of the
statute to protect the financial security of widows and their children. [FN201] Ghanaian courts,