Parliament has initiated the process of reforming the country’s Intestate Succession Law, which excludes polygamous spouses and dependent parents or children of the deceased who are still in school.
Diana Asonaba Dapaah, Deputy Attorney General and Minister for Justice, read for the second time on Wednesday June 21, 2023 the Intestate Succession Bill 2022, which is meant to correct the flaws in PNDC Law 111.
According to her, the new legislation is also designed to establish a uniformed intestate succession law that would be implemented throughout the country regardless of the intestate’s inheritance system or the type of marriage contracted.
She contended that, there is little or no protection in customary law for surviving spouses, and neither spouse has the right to the property of the other, nor do children in the marriage system have the best support by the customary system.
The Deputy Minister said changes in the Ghanaian family system have rendered the present law outmoded.
“The nuclear family has actually eroded the significance of the extended family in a manner similar to what pertains in the Western world – thus giving the nuclear family greater prominence which is not reflected in the existing laws for succession,” she noted.
She stated that the customary law concept of marriage does not consider the wife to be part of the husband’s economic needs.
“As a result, the wife’s clings to the husband’s property is very limited. However, there is currently a shift towards the involvement of the wife in the economic activities of the husband.
“And this has considerably reduced the influence of the extended family in intestate succession. The growing importance of the nuclear family brings with its own logic of moral justice,” Ms. Dapaah stated.
She explained that, the rationale is that the surviving spouse needs to be compensated for the services done to the departed spouse, adding, “There is a need to satisfy both spouses’ expectations by giving the property of one to the other on the death of a spouse.”
She added that, while the Intestate Succession Act 1985 (PNDC Law 111) provides some protection beyond Customary Law, it was an innovation at the time of its implementation and was welcomed as a source of solace for spouses who were frequently rejected and subjected to other sorts of persecution.
“The law was intended to prevent members of the extended family from taking over assets of the deceased for their own use to the detriment of surviving spouses and children.
“Some of the provisions have, however, proved inimical to the interest of the immediate family of the deceased.
“The provisions of the factional distribution of the estate have been very difficult to implement,” she said.
The precise percentage of the estate determined by existing legislation to devolve to the spouse regardless of the number of spouses, according to her, is also problematic.
“In other words, the current law does not make provision where there is polygamous marriage where the deceased is survived by a number of spouses.
“No provision is also made for the dependent parents or children of the deceased who are still in school,” she stressed.