Thank you for reaching out to us. As is often the case with matters of law, the answer to this is that it depends on the situation, what kind of wealth you are claiming and on whose behalf.
Broadly speaking, you could claim either; in your own personal capacity or on behalf of the child between you and your baby daddy.
Claiming in your personal capacity
The surest way of being entitled to a part of your baby daddy’s estate is getting listed as one of the beneficiaries in his will.
A written allow someone to distribute their assets to whoever they want (including to people who would not ordinarily be entitled to a share of the Estate) and in whatever manner they choose.
If you are listed as a beneficiary, there is not much others can do to prevent you from getting a share.
Where there is no will, however, the situation becomes more complicated as the distribution of the estate is done in accordance with The Law of Succession Act.
The general position of the Act is that only spouses (in the case of romantic partners) are entitled to claim from their partner’s Estate.
Despite this general position, however, there are circumstances where an unmarried woman can claim from their partner’s Estate or claim a share in property acquired during the relationship with the baby daddy.
Typically, this happens where a marriage can be presumed between the woman and the baby daddy.
A presumption of marriage arises where no formal/customary marriage exists between the couple but where the conduct between them is such that a marriage can be inferred.
The common ingredients necessary to create a presumption of marriage include;
Long cohabitation (living together as a couple) between you and your baby daddy. Courts also take note of the conduct of the couple, including whether the mother and the baby daddy hold themselves out in public or to other people as husband and wife.
Similarly, the lack of factors that would prevent the presumption from being made, such as an existing marriage between the baby daddy and another woman, also contribute.
If a marriage can be presumed between you and your baby daddy, you would be entitled to directly claim a share of his estate in the case of his death, even though no marriage was celebrated between the two of you.
A presumption of marriage would also entitle you to file suit in court and ask for a share of the assets you acquired during the duration of the relationship on the ground that such property is the matrimonial property and was intended to be shared between the couple.
If you are unable to prove the presumption of marriage, it is unlikely that you would succeed in making a claim of your baby daddy’s Estate.
Your child, on the other hand, would be automatically entitled to a share of your baby daddy’s Estate simply by virtue of being the biological child of the father.
Claiming on behalf of your child
When it comes to the matter of your child’s entitlement to a share of his baby daddy’s estate, he or she would be entitled to a share (in the case of the father’s death) or maintenance until they reach the age of eighteen (subject to extension by the court).
When it comes to the matter of provision for and maintenance of children, the law is very strict, and the responsibility to provide for the child attaches equally to both parents whether they are married or not.
Where a baby daddy fails or refuses to contribute towards the upkeep of their child, the mother is always at liberty to approach the children’s court for orders to compel him to make financial contribution towards the child’s maintenance.
This parental responsibility lasts until the child reaches the age of 18.
However, in actions for provision for maintenance for children, neither parent is entitled to make a claim on the basis of their own needs.
All claims are therefore limited to what the child needs and nothing further.
While we hope that this review has been helpful, we would also advise you to consult an advocate if you have any succession or maintenance issues.
The law can often be nuanced and there may be certain factors that give (or take away) certain entitlements that were not mentioned in this overview.
Ms Dammary is a Senior Legal & Compliance Officer at Zamara; [email protected].