Four factors determine the consequences of the loss of a husband or partner for women:
- loss of the husbands’ (or partners’) income from paid employment,
- the availability of adequately paid employment opportunities for women together with childcare,
- rules regarding the inheritance of property (both formal and informal) – particularly land for rural women in developing countries, where the impact of a lack of sons is significant,
- the existence or lack of state welfare provision (especially healthcare, childcare and education), currently referred to in the research on developing countries as social protection.
The consequence of loss of income on the husband’s death is straightforward, in that the income he once earned is no longer available for the surviving wife or partner and any dependent children. A programme for widows started in 1999 by the World Bank and Indonesian government stated that ‘the link between widows and poverty is well-known. Loss of an adult male is economically devastating to already poor families’ (World Bank 2005).
How severe the impact of this material change in circumstances is depends on the other three factors mentioned. The evidence from around the world suggests that in too many cases, all three of these factors present themselves simultaneously in the least advantageous ways, compounding one another and ensuring widows and their children move into extreme poverty. Jody Heymann’s international study (Heymann 2006) on families in poverty demonstrated the wide international incidence of income-induced poverty for women and their dependents when families go from two incomes to one, or as is often the case, from a better paid male income to a very badly paid female income when women lose their partners or husbands.
The big-picture view of the prevalence and severity of loss of income for widows as a group, from premature male death, is provided by a rare multi-country poverty study by the World Bank (Narayan 2000: 253-254). This study on causes and processes of poverty asked individual men and women around the world about the triggers of downward mobility into poverty. Data in the study are ordered in the broad geographic groupings of Africa, Asia, Eastern Europe and Central Asia, and Latin America and the Caribbean.
In all regions combined, 43 percent of women cited ‘illness, injury, or death’ (World Bank’s wording) as the primary cause for moving into poverty, compared with only 23 percent of men. Combining men and women together, overall, ‘illness, injury, or death’ was the most common out of the 17 poverty triggers the study recorded. Nearly 35 percent of men and 20 percent of women reported the reason for falling into poverty as ‘loss of employment or fewer opportunities’, which includes, ‘a decline in temporary and seasonal wages.’ Section 5.1.1 examines the impact of losing the husband’s or partner’s income in more detail.
Loss of income, low wages and lack of a welfare state
In many country contexts, women, and in particular widows, are either not permitted to take up paid employment at all, or find it difficult to obtain, and/or are unable to find dignified types of work (Shukri 1996: 59-63, Sangtin Writers and Nagar 2006: 72-77, Jeffery and Jeffery 1993 and 1996). Even where they do, they are paid less than men, sometimes significantly so. Income inequality between men and women can further aggravate a situation where men’s wages in manufacturing and agriculture are already low and typically insufficient to maintain families without state welfare support. In addition, childcare is required if women are to take up full-time work due to the loss of a spouse or partner. This brings additional costs and daily logistical considerations. The international significance of the childcare issue was highlighted in a recent international study by Jody Heymann (2006) and shown to be a significant problem across all regions, especially for women in low-paid employment.
The problem and risks of inadequately paid work and lack of childcare are starkly illustrated in the 2008 testimony of a young Bangladeshi widow. Salma (name changed), a garment factory worker in Dhaka in her mid-20s, whose husband was killed in a factory fire, gave the following account during a awareness raising campaign on the exploitative working conditions of workers producing clothes for the OECD market:
‘Working hours per day are from 8 am to 10 pm, with only a 15-minute break. Work pressure is high: there is not time to go to the toilets, which are very dirty and too few in number, there is no safe water to drink, some have caught typhoid from it. We are often not paid on time, and overtime is sometimes not paid at all even when it is due. I earn £25 a month, £40 if I am in luck through overtime.
‘Workers do not get the legal entitlement to maternity leave. Factories sometimes have very bright lights or not enough light. The air in the factories becomes extremely hot because of the outside temperature and the lack of widows, most of which are very small, and again, there is nothing to drink. Chemicals on the fabrics are not handled with protective clothing. [Air-borne particulate matter from the cloth poses a significant respiratory hazard if not controlled.] The buyers require two things of factory owners for the workers, a canteen and a children’s day-care facility. But in my factory, we are not permitted to use them, and are told that we should tell anyone who asks where the children are, that we have no children, so we don’t need the children’s facility.’
A trade unionist representing Salma said the wages widows earn do not support a family, resulting in them living in slums located far from the factories in the case of Dhaka. And when the factory workers, 85 percent of whom are women, agitated not for a living wage, but for equal pay with men, some local Mullahs (Islamic clerics) condemned equal pay with men, saying if obtained, the women would, ‘burn in hell’.
On top of this, buses are not affordable on a daily basis, so they have to walk (a two hour commute one way), which, with a late evening finish, means women are said to be at risk of sexual assault. Because of the working conditions, workers spend no more than six to ten years in the industry.
Salma was able, through the trade union that fought her case, to obtain compensation for the death of her husband. Because she is widowed, and the factory does not allow the childcare facility to be used, Salma’s son, her only child, lives with her parents in the countryside. Salma is only able to see her son twice a year, usually during Eid. The western company that outsources the production of its clothes to her Bangladeshi company contractually requires it to provide childcare for employees with young children (interview with R.F. Harma, 2008).
Without her husband, this widow is locked into this highly demanding poverty trap, with heightened risks and accumulating negative impact on her health. Without remarrying, and with only one young child as a possible source of future support, she already faces a heightened risk of deeper deprivation and outright destitution. There are three million Bangladeshi garment workers, most of them women.
Even widows whose husbands have left them money are not immune to the problems faced by the group in which they unwittingly find themselves. Kidan Felomon, an Eritrean widow, thought she might be one of the lucky ones, until reality proved otherwise:
‘I am a 47-year-old widow and I live in Asmara, the capital of Eritrea. I have nine children. The oldest is 20 and youngest is seven. My husband died of AIDS in 1999. He was a well-to-do merchant who travelled between Eritrea and Ethiopia. He did not tell me that he was infected with AIDS. Three years before his death I asked the doctor who was looking after him to tell me the cause of his sickness and he told me that my husband was suffering from liver cancer. But later, one of the nurses who were coming to my house weekly told me that my husband was infected with the virus. When I found out that I was HIV-positive too, I felt like killing my children and myself. The illness of my husband totally impoverished our family. I sold all our furniture and jewellery to support my family and pay for my husband’s medical expenses. I had 70 to 80 grams of gold, which my husband had bought for me, but I had to sell that too. There were times when I could not give food to my children. Once, my children went without food for a whole day. In the evening I gave the last plate of pasta to my husband and did not know what to give to the children…’ (Izumi 2006: 14)
In Cambodia, widows do not suffer from the levels of gender discrimination seen in Sub-Saharan Africa, South Asia and the Middle East, due to the reciprocal nature of kinship practices between husbands’ and wives’ parents’ families. This means married daughters are able to assist their widowed mothers on the mother’s agricultural plot, an unlikely scenario in northern India, where married women are deliberately isolated from their parents (Lee 2004: 4-6).
However, Cambodia still provides a prime example of large-scale widows’ deprivation, due to the country suffering from widespread and deep poverty induced by economic underdevelopment, and due to international and internal military conflict, including a heavy incidence of landmines and UXO. A significant section of the country was carpet bombed with high explosive and air deliverable landmines during the Vietnam war and today remains unsuitable for livelihood exploitation. Cambodia is one of the 49 countries designated by the UN as ‘least developed’ (LDC status) (United Nations Conference on Aid and Development 2008). Around 80 percent of the population is rural. Rural widows are reportedly unable to support their children through agriculture, requiring a diversified livelihoods strategy. However, unlike the post-conflict situation in Afghanistan, widows have been able to move into male work roles in the face of the shortage of men caused by the Khmer Rouge genocide (Lee 2004: 4-6).
Clearly effective social protection or state welfare provision, including free healthcare (free at least with regard to non-elective medical treatment), income support, childcare, and free children’s education would make a significant positive difference for widows. The minimum requirement of these is income support (including pensions for older people), while a truly effective regime would include at least free healthcare and childcare as part of this minimum. As a proxy for the effectiveness and existence of state welfare provision, Table 5.1 looks at data on deaths of mothers in childbirth for nearly all countries. Maternal mortality is a very effective indicator of the quality and coverage of healthcare systems because of the multi-faceted nature and complexity of maternal healthcare, covering pre-pregnancy, antenatal, childbirth and post-childbirth stages of medical care required to ensure women stay healthy, with a particular emphasis on logistics. In Table 5.1 countries with poorly functioning or non-existent welfare state are at far left, and those with very effective and ‘gold standard’ ones are at far right. Afghanistan versus Austria sums up the measurement scale. A gradation of groupings lies in between.
Table 5.1 measures the coverage and effectiveness of state welfare provision globally using maternal mortality as an indicator. Countries with the highest maternal mortality, such as those in Sub-Saharan Africa, or Afghanistan, are known to have very low quality or non-existent state welfare provision. Child mortality follows a similar pattern, and can be seen in the table in the appendix to this section. Similarly, as shown in the section on war widows, women who are effectively widowed by conflict, but who cannot prove their husbands’ deaths, are denied government income support, resulting often in severe poverty that threatens health and life expectancy.
The opposite outcome is clearly demonstrated by those East Asian countries with state welfare provision in the core areas of health, education and income support for vulnerable groups (Haggard and Kaufman 2008, Gauld 2005).
The following example highlights the importance of state welfare provision where husbands have died of HIV/AIDS. It demonstrates the start of a downward spiral for the surviving family. The story of Lorato, a young widow in Botswana, illustrates clearly what happens when employment and family support fails and the welfare state does not exist. Lorato is the mother of three children: one year old Unity, three year old Masilo, and seven year old Ontibile. She had been maintaining her children on a small income provided by her partner, Baruti, which amounted to 600 pula ($129 US). However, Baruti died of HIV/AIDS, resulting in an immediate crisis for Lorato and the children. She not only faced a dramatic drop in income, she now had to find childcare if she was to work enough to support her children. She was forced to choose work that allowed her to take the youngest child with her, and left the two older children alone at home. However, further complications arose when the youngest child became ill. Caring for the ill child prevented her from working, which meant she did not get paid. She recounts:
‘With the money, I always made sure I paid the rent first. If we didn’t have accommodation, it would be extra difficult. We make sure we pay the rent and with the money that is left we buy food and try to live off piece jobs. I used to get my money from piece jobs and buy some used clothing for my baby – shawls, vest, socks. There was another lady we knew who worked at the clinic. Because other children were getting food from the government and were picking it up at the clinic, we usually asked her to give us some cooking oil. She’d take some for us if she could manage it. Sometimes it was paleche [corn porridge], beans, or milk. She would help us in that way.
‘After Baruti passed away, I think my children noticed a change in my care. My ability to provide food for them and other needs had changed. [Before he died], there were times when there was a favourite meal – meat with beans. Very soon, it wasn’t there, and they started asking for it. I’d just tell them, ‘Look, I have only porridge today, so you’ll just have to eat it.
‘I was lucky I got a job as a maid, so I had to get someone to look after the children while I was out at work. But I came back after a very long time, and my baby had the same diaper on as when I left. Even now, my child is being treated for her diaper rash. The baby still has it.
‘[The care provider] had taken her [own] baby and left my children hungry and with no one to take care of them. When I came home, my youngest son had eaten a chongololo [a type of centipede]. They have many, many legs. He swallowed one and its legs were all over his throat. The legs had to be taken out at the hospital.
‘My baby started to get sick in the beginning of December. Although I was breast- feeding her and she ate and fed well, she started vomiting after eating. I watched her, thinking she would be okay, giving her porridge often during the day so that she would still have her strength. I gave her some water and she got better. On the 16th, I decided to bring her to the hospital because she had started to have diaorrhea by now. She was admitted that same day in the hospital, and on December 25th she was getting better. On the 29th, it started again. That’s when she didn’t want to eat anything – she didn’t take any food. Only recently, one of the doctors here asked me if people ever visited me who were my guardians and who were close to me. I started getting worried. What if something serious were to happen? What if I’d have the world’s worst problems?
‘I really can’t afford anything because I’m not working and there really isn’t anyone who is helping me with anything. None of my relations have come to visit me except my sister… When we were first here at the hospital, she gave me 50 pula from her money (her boyfriend) had given her. In that sense, that’s all I can live on. Sometimes the people who are in the hospital as well send me to go to a tuck shop (a small informal stand or stall close to a roadside which sells basic provision) and then on the way I meet somebody I know. They’ll say to me, “Here’s 5 pula, go and buy yourself a drink.” I don’t use that money for drinks; I make sure that I buy soap.’ (Heymann 2006)
Jody Heymann, the author of the international study that featured Lorato’s case, documents similar conditions for widows and their children in Honduras and Vietnam. She emphasises the need for adequate state-funded childcare, among other free-at-the-point-of-use social provision such as healthcare, if low-income single parent (e.g. widows’) families are to survive.
Other researchers have noted the simultaneous confluence of loss of income, lack of employment, lack of a welfare state and loss of inheritance. The following is an observation by Chen and Drèze, widely known internationally for their research on widows deprivation, in their research on India:
‘The north Indian widow tends to be a highly marginalised person. She typically receives very little support from persons other than her own children, and even when she lives with one or several of her adult sons she remains highly vulnerable to neglect. Further, her ability to engage in income-earning activities of her own is severely restricted, partly due to various patriarchal norms such as patrilineal inheritance and the division of labour by gender [i.e. limited options for women to have paid employment]. The consequences of this social and economic marginalisation are manifest (…) in poor health and high mortality levels.’ (Madan 2002: 417-444, citing Chen and Drèze 1995)
In India, the widely held view that older widows are adequately cared for by their children is only partly true, based on the evidence of older widows living on their own or evicted and abandoned. This is of great concern, given the sheer number of widows in India and that 41.6 percent of widows are living in extreme poverty. The 2001 Census of India recorded 34.3 million widows, which the present Report estimates will have reached at least 42 million by 2010 (Government of India 2008: 5). A medical NGO working in a rural area of the Indian state of Haryana identified widows with dependent children as the group least likely to be able to afford healthcare, the widowed mothers being able to secure only one meal a day. In another example, an aid worker from the NGO Action Aid’s Bangalore office visiting a rural area in the state of Karnataka, found a family who had placed their elderly widowed mother in a type of cage. This was done because the old woman, while left alone in the house, had a habit of breaking things due to her frail condition. While the first response to a case like this can be to view this is a barbaric act, it should also be considered that there is no state welfare provision for home help for a family in this position (R.F. Harma interview with Action Aid Bangalore, December 2009).
The town of Vrindavan, in the state of Uttar Pradesh, northern India, serves as a barometer of the widows issue in South Asia. Research indicates it has a population of 16,000 widows who have been abandoned there or sought refuge in the community. Some have been there since becoming child widows. The situation in Vrindavan was captured in the documentary The Forgotten Women (Mehta 2008) and the photographer Fazal Sheikh has produced a photo essay with testimonies. Vrindavan also featured in an article on Indian widows in The Economist (2007).
In all instances of widow poverty documented in this Report, the outcomes of becoming widows would have been significantly improved had state welfare provision existed and operated in an effective manner. However, where welfare states exist, they must be properly managed or they can cease to have the required effect. An example of poor management in this respect is the Philippines between 1969 and 1988, where the government paid for access to private sector healthcare provision. However, no effective cost management was applied, allowing providers to increase prices to the point where the government was no longer able to provide effective healthcare and low-income recipients suffered. By 1988, the state covered only 30 percent of ‘average hospital costs.’ In India, the complete collapse of the public healthcare system in many parts of the country ‘for reasons other than under-funding’ has been noted in government research (Government of India 2005, Jeffery, Jeffery and Lion 1988, Haggard and Kaufman 2008: 121).
The effects of inadequate welfare state provision is given by this example from Egypt:
‘My son ran away from home and left me. He blames me for remarrying at my age. But tell me, what should I have done? I tried for two years to survive on my own after my husband died. I tried to work but could not find a part-time job, and I have no skills but to clean other people’s houses. I went to MOSA [the Egyptian Ministry of Social Affairs] and they gave me 34 [Egyptian] pounds a month. But I need more than 200 pounds to barely survive and to pay for the children’s school. I was unable to work. I really tried.’ (Sitohom, 32, widow who remarried) (Bibars 2001: 2)
Disinheritance and ‘grabbing’
Loss of the husband’s income driving widows and their children into extreme poverty is often compounded by disinheritance in developing countries (Tinker 1999: 9-11). This consists of the widow being dispossessed by her late husband’s family. While there are no statistics on disinheritance, a careful reading of the evidence indicates it is a widespread problem that affects several regions, notably South America (Deere and Léon 2001), Central America (Hamilton 2002), across Asia (Agarwal 1994 and 2007, Rao 2008, Krishnaraj 2007, Chowdhry 2009, Chaudhry 2001, Anh 1999, Gaetano and Jacka 2004), Sub-Saharan Africa (Asiimwe 2002) and the Middle East (Moors 1996). At its worst, it can involve not only property, but also the confiscation of children. Inheritance rights of women as widows are thus a major concern for the well-being of widows and their dependent children, and has been officially recognised by the UN agencies IFAD – the International Fund for Agricultural Development – and FAO – the Food and Agriculture Organization (IFAD 1998a and b, 2000 and 2009).
Disinheritance takes several forms, differing in combination across developing countries. It can include:
- losing control of the family land, housing, ordinary household property and farm assets of all kinds;
- outright eviction and complete loss of all property resulting in abandonment of the widow and her children (i.e. expulsion from the extended family);
- eviction with complete property loss together with confiscation of the children by the husband’s family.
Why does disinheritance happen? The causes include
- gender inequality that penalises women, based either on culture (“Good women do not inherit land” (Rao 2008) or, if they can, they must choose between freedom to re-marry by choice and losing their children to in-laws), or on practical considerations (difficulty in obtaining agricultural inputs),
- economic pressures in rural areas e.g. decreasing farm size in areas of increasing population density,
- formal or customary inheritance laws that do not allow widows to inherit their husbands’ property.
Most women in developing countries (except Latin America) are rural, supporting their families through subsistence agriculture. However, the land they work is typically owned and/or controlled by their husbands. Many newly-widowed women are instantly disinherited illegally and legally and therefore lose this source of non-cash income as well as the husband’s cash income. They become homeless, with their children or on their own. The risks to these women’s well-being include acute malnutrition, rape, prostitution, debilitating and fatal diseases, and exposure to adverse weather conditions (Tipple and Speak 2009: 135). If their children go with them, they face the same hazards, together with loss of education and the risk of child labour.
The Property Rights Alliance, an NGO based in Washington, D.C., produces an annual monitoring report on property rights around the world, known as the International Property Rights Index (IPRI). This includes a version that takes into account gender equality, and the relative lack thereof, in property rights between men and women. One of the gender variables in the index is inheritance. Out of ninety countries for which the index has data, representing nearly half of countries in the world, the 2009 IPRI report found that the most gender equal country in property rights was Finland, and the least gender equal was Chad. The top ten countries include all of Scandinavia, together with the Netherlands, Germany, New Zealand, Australia, Switzerland and Austria. The bottom eleven, from position 80 downwards, were Nepal, Pakistan, Cameroon, Zambia, Albania, Ethiopia, Nigeria, Angola, Zimbabwe, Bangladesh and Chad. The report also notes that:
‘Women’s equal rights to the free possession, enjoyment and disposal of property are a universal human right recognised by international human rights treaties including the Universal Declaration of Human Rights. In fact, the recognition of ‘the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration [and] to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes’ are universally considered as part of elimination of all forms of discrimination against women.’ (Property Rights Alliance 2009)
Disinheritance can apply in a loose and a strict sense. In the loose sense, in parts of Sub-Saharan Africa, women may not have the civil legal or customary right to inherit their husbands’ land, but instead have the right to reside in the house where they lived with their husbands and have use rights to the land. Disinheritance in this case involves being evicted from the house and not continuing as a part of the husband’s wider family. The strict sense of disinheritance operates in the standard legal meaning of being entitled to inherit by law, but being prevented by any of a number of illegal blockages, typically applied by other male family members of the deceased husband. The end result is that male family members acquire the land and property of the widow. As well as Sub-Saharan Africa, this is a common occurrence in South Asia, and to some extent in Latin America, notwithstanding the latter’s generally more favourable legal inheritance provisions for widows (Deere and Léon 2001).
In the case of South Asia, with specific reference to northern states of India where most of the population lives and where widows deprivation is particularly intense, the following picture emerges. Writing in 1994, the researcher Bina Agarwal observed that ‘in practice….the fragmentary available evidence suggests that many [widows] who are eligible to inherit do not, and those that do inherit do so mostly on severely restricted terms… In most cases women do not inherit the absolute estate they are entitled to under contemporary Law’ (Agarwal 1994, see also Phadke 2008). More recent evidence for north east India published by Sindhu Phadke in 2008 finds that widows, whether Hindu or Muslim, are unable to inherit across most of the states in this region of the country in spite of laws specifying their entitlement. Indigenous ethnic groups in the north east typically follow strong patriarchal norms, resulting in widows not inheriting property. There are exceptions, such as among the Tripuri and Jamatia indigenous groups in Tripura state, and also in some other states, where some small inheritance concessions exist in social norms, but they are in the minority (Phadke 2008: 171). It should be borne in mind when drawing conclusions that we have not listed every exception in the present Report. Evidence published in 2009 for most of the rest of northern India (central and west) confirms that inheritance discrimination against widows is the general norm there:
‘…in the tenurial laws of northern India, namely, [the states of] Haryana, Himanchal Pradesh, Punjab and Uttar Pradesh (as also in Delhi and Jammu and Kashmir), the specified rules of devolution of land show a strong preference for agnatic succession, with priority being given to agnatic males. In all these states the tenancy devolves in the first instance on the male line of descent. The widow inherits only in the absence of these male heirs… She also loses her land if she remarries or fails to cultivate it for a specified period, usually a year or two.’ (Chowdhry 2009: xxii, Parwez 2009, Devi and Arora 2009, Karna 2009, Hans, Mishra and Patel 2009, Brown and Chowdhury 2009, Jha 2009, Sethi 2009a, b, c and Arora and Singhi 2009)
In the northern Indian state of Jharkhand, near the states of Bihar and Uttar Pradesh, an example from the Santal indigenous ethnic group illustrates the significance of the absence of male heirs, a widow’s young age and place of residence:
‘Married at the age of 20, widowed at 32, Jharna has two daughters aged ten and six years. After her husband’s death, she moved to her parents’ home in a nearby village. She earned wages through labour [to pay a man to plough her land] in order to cultivate her husband’s land, one acre in all. When she returned to Bagdiha to cultivate, however, she found that this land had been ploughed over by her husband’s brother and father. On being questioned, they denied her claims on grounds that she had only daughters, while her husband’s brother had a son. The community leaders held a meeting and decided in her favour. She started cultivating the land… Though she is prepared to pay the full wage for ploughing her land, they [her father and brother in law] ask other men in the tola [hamlet, small village] not to plough for her.’ (Rao 2008: 216)
Few countries in Sub-Saharan Africa ‘…have legislation in place designed to assure women’s access to land and property.’ As of 2006, Sweetman (2006) lists those that do as Burkina Faso, Eritrea, Malawi, Mozambique, Niger, Nigeria, Rwanda, South Africa, Tanzania, Uganda and Zimbabwe (Sweetman 2006: 2; for Eritrea see Tekle 1998: 2; for Nigeria see Immigration and Refugee Board of Canada 2000). East Asian countries, particularly those with communist roots in the second half of the twentieth century, appear to have the most egalitarian legal systems of inheritance for widows, even though, as in many parts of the world, practice does not mirror the legal position.
Inheritance practices in Islamic societies are on paper more clear-cut, with Islamic inheritance rules applying, in principle, across international borders. These allocate a specific percentage of the husband’s estate – 12.5 percent of the husbands’ ‘property and assets accumulated during the marriage’ (Sonbol 2003: 159), and 25 percent if there are no children – to the widow. A clear quantitative standard is underpinned by religious authority, although in most cases, where widows come from low income backgrounds, the specified share will not be adequate to support livelihood.
However, Islamic inheritance rules and the assumed respect for the Qur’an do not always hold in practice: ‘one must always keep in mind the difference between law and custom when dealing with women in Islam, for often Islam grants them rights which social custom strips away’ (Amawi 2003: 157). Although internationally, there are local divergences from this rule of thumb, under customary law in Berber parts of Morocco and western Algeria, among Kurdish tribes in Turkey and among most tribes throughout the Middle East for most tribes, women have no inheritance rights at all. Muslim widows in the north east Indian state of Assam do not inherit (Phadke 2008: 155). In Bangladesh it has been said that, ‘…in the absence of a mature son, survivors [widows] are at substantial risk of economic decline during the transitional period [after the husbands’ death], because of the insecurity of property rights and the appalling vulnerability of women in this society’ (Cain 1988: 20, Owen 1996: 51). Examples from the Nablus area of the West Bank in Palestine follow the same pattern: widows can be disinherited if they are young, have small children (especially girls), and are not on good terms with in-laws. Often property, such as land, is distributed to other male in-laws in order to avoid it going to the widow (see section 5.3.4). The situation in Afghanistan is still many times worse for widows (see section 4.6). In Pakistan, research carried out in 2001 for a report on women and poverty focusing on parts of Sindh and Punjab provinces found that ‘very few widows, especially those with small or not male children, are allowed access to their deceased husband’s land or income. Whereas some women from landed backgrounds are at least taken care of by their relatives, many women, especially those with little backing from parents or siblings, are left to their own devices’. Numerous other examples of individual widows’ loss of husbands’ land were recorded in this research on Pakistan (Chaudhry 2010: 61-62, 90-91, 103-104). A 2009 survey on the reality of women’s inheritance rights in southern Punjab in Pakistan found that respondents most often cited a widespread social norm against women’s inheritance as the reason for women in general – not solely widows – not inheriting (Awaz Foundation Pakistan 2010: 12).
In Iran, the situation is generally no better:
‘...historically, Iranian women have experienced a sharp diminution of economic and social authority after their husbands’ death. Inheritance laws give a widow a very small proportion of her husbands’ wealth (one-quarter of moveable assets if they have no children and one-eighth if they do). The rest goes to the children, the parents, and the siblings of the deceased. In most cases, her son becomes the main provider for the widow.’ (Afary 2009: 303)
There are some examples – as with the Muslim matriarchal communities in Sumatra and Java in Indonesia – where customary inheritance practice works in favour of women (in contrast to a section of southern Sumatra, see material on East Asia below). It has been noted elsewhere in research that there is no uniformity in Islamic practice with respect to widows (Ruthven 2000: 158; Yalcin-Heckmann 1995: 220; Bremmer and Van den Bosch 1995, ch. 10).
Unpredictable outcomes can occur in Islamic societies, as shown in Lebanon in 2001:
‘a new law passed without discussion by the Lebanese cabinet has deprived Palestinians of any future house ownership in Lebanon and – in a clause that has astonished and appalled those who already own their own homes – has forbidden Palestinian men from passing on their property to their wives or next of kin when they die. Grieving Palestinian widows in Lebanon can now look forward to eviction from their family homes, which must, by law, be sold to Lebanese.’ (Fisk 2001)
In Palestine itself, it is crucial for widowed women to be on good terms with their late husbands’ relatives in order to inherit. Disinheritance often happens before the husband’s death by his redistribution of property to other family members – on his death there is no property left to be inherited (Moors 1996: 79).
More generally, it appears that there are striking parallels between rural northern India and rural Sub-Saharan Africa, as shown in this description of rural Jordanian society:
‘The right to inherit land as a widow has not always been easy for a woman to assert in practice. A widowed woman cannot alienate the land – in effect she merely acts as custodian of it until her sons grow up. A widow who has no children is unlikely to be able to claim the property in practice, exercising only the right to maintenance for herself from her husband’s family which custom has always permitted. If she has small children it may still be difficult for her to assert her right to take over the land on their behalf unless her own kinsmen are prepared to help her put up a fight. Otherwise her husband’s kinsmen are likely to put every obstacle in the way of her registering the land in her own name.’ (Shukri 1996:67)
Conversely, while the lack of economic growth is one of the key reasons Sub-Saharan African widows face disinheritance – with families viewing the death of a relative as the only opportunity for economic gain in their lives – in several East Asian countries the cause of disinheritance can sometimes be rapid economic growth and economic transformation. The economic transformation now taking place is succinctly presented by Irene Tinker and Gale Summerfield, two women’s development specialists who have provided some of the limited amount of research on women’s property rights in East Asia:
‘When the communist governments were set up in Vietnam, Laos and China, nominal rights were granted to women. The peasant leaders of these socialist movements realised the importance of the connection to land and granted land use titles to women as well as men; land was and is still officially owned by the state in these Asian countries. Housing in the countryside remained private, but in the city state-owned enterprises offered employees subsidised units at less than five percent of a worker’s salary; these could be allocated either to women or men but in reality were given out through the man’s work unit. Because China began its socialist phase in 1949, most urban households were living in subsidised units until recently; in Vietnam, which set up the socialist government in the North in the mid-1950s, and throughout the country in the 1970s, less than half the households were in state units in the North, fewer in the South. Laos, as a predominately rural country, had not yet introduced subsidised housing…’ (Tinker and Summerfield, 1999: 3)
The reform process in these three economies began in China in 1976, when communes were turned into family farms and non-state businesses and self-employment were permitted. In Laos and Vietnam it began in the 1980s, with land being returned to private control and exchange through sale (ibid.).
The adverse affect on widows of economic growth and transformation has been demonstrated in rural lowland Laos and rural China. In Laos, women are losing traditional matriarchal property rights to male relatives because of flawed government land reforms. This has been reported as resulting from the lower education levels of women compared to men, and from gender-divisive bureaucratic procedures (Deere and Léon 2001, ch. 8). Forms to register land require completion by the head of household, and some men use their greater literacy to deliberately disinherit their female family members. This underlines the importance of literacy and education for women’s well-being (Viravong 1999: 153-161, Ireson-Doolittle 1999: 149). The other key factor is gender-insensitive government departments assuming there can only be a single household head and that this person is the husband, thus ruling out the concept of joint ownership of property in marriage (Deere and Léon 2001): ‘… all-male teams from the strongly male-dominated Department of Forestry register household land, including the land inherited by the wife from her parents, in the name of the ‘head of household,’ who is always understood to be male unless there is no adult male in the household’ (Ireson-Doolittle 1999: 149). Thus, once widowed, women even stand to lose property that was already their own.
In Laos, the land titling process has been established ‘in response to pressure and funding from multilateral lending agencies and bilateral Western aid donors’ (ibid.). While these international donors have indicated the need for, and their commitment to, gender-sensitive development programmes and policies, they have not exercised the required level of oversight in programme implementation. Male bias with regard to international multilateral donor property titling programmes was also experienced in Latin America (where joint ownership in marriage does occur in several countries). Compounding international agencies’ ineffectiveness in ensuring that the implications of gender discrimination are addressed, is so-called ‘gender fatigue’ (Jones 2007), increasingly cited by practitioners against a backdrop of deliberate blocking of pro-women policies, including those focused on widows, by many developing country governments (R.F. Harma interview with intergovernmental agency gender specialist, 2010).
Research on inheritance practices affecting Cambodian widows is scant. A 1968 source quoted by Susan Lee (2006) implies that widows had full inheritance rights to their husbands’ property and typically do inherit (Lee 2006: 25, citing Ebihara 1968: 114). However, the family as an organisational unit was abolished under the Khmer Rouge regime, when the concept of inheritance was irrelevant. A 2001 reference states without elaboration that ‘…in Cambodia, where laws provided for the legal ownership of land, widows encountered problems gaining legal possession because of their low social status and the indifference of local authorities’ (Kumar 2001: 16).
In Vietnam, the government’s land reform process explicitly recognised the right of women to be joint landowners with husbands. However, women’s lack of awareness of the benefits of joint ownership caused some to miss out on joint ownership and thus a potentially improved situation once widowed (Tinker 1999: 19). As in Laos, the general bias (on the part of government and husbands) towards the idea that the head of household must be male, has resulted in 80 percent of Vietnamese rural households being male-headed in the latter 1990s. Vietnam used the same ownership-head of household criterion in its land-titling process as Laos (Anh 1999: 109).
In rural China, while the Chinese constitution guarantees the right of women to inherit property, ‘such provisions are seldom enforced’. Specifically, ‘according to the traditional clan and virilocal residence customs, women have no right of inheritance’ (Weisha 1999: 136). Referring to the period up to 1990, it has been observed that ‘widows in reform-era rural China still had difficulty claiming family property’ (Hershatter 2007: 25). There appears still to be a strong and widespread social norm against widows’ independence in property inheritance and remarriage, also reported to exist in Taiwan (Gilmartin 1990: 210, for Taiwan see Kung 1997). Chinese widows are expected to remain in their original marital home or with the families of sons, who take on the head of household role when their mothers become widows. However, the massive economic transformation that has taken place and is continuing in China has produced more concrete burdens for rural Chinese widows, which are addressed in section 5.2.2.
These conclusions on East Asia should however be treated with caution, given the evidence from southern Sumatra about the customary law applied in the Batak community, denying widows rights to inheriting the husband’s property. There is evidence of violence perpetrated by sons, and of sons stripping widowed mothers of all assets and possessions based on customary law, although the evidence is not sufficient to determine how widespread these practices are. Indonesia, like other countries, has more than one type of law in operation, with different outcomes for widows’ inheritance. Customary law operates as decribed. Formal or written law exists in two forms: the Civil Code introduced by the former colonial power, the Netherlands, and Islamic law. In addition there is the Marriage Act, which sits outside the other three systems and specifies widows’ inheritance rights (Irianto 2002: 92-96 and 2003; Ihromi, Kriekhof and Irianto 1996). Case law meanwhile is also developing as a fourth type of law. This is referred to as ‘judge made law’ (Irianto 2002) or legal precedent, drawing creatively on the three existing systems to deal with particular issues as they arise.
Just as we must be cautious in our conclusions on the first group of East Asian countries described above since the rest of East Asia may not be the same, the same applies to Indonesia. While the Sumatran study illustrates serious problems for widows, a study of Java shows that, notwithstanding land titling being in the name of the husband, the social norm, as in law, is that property is jointly owned by husband and wife (Brown and Purwanti 2002: 2). It is also worth noting, for inheritance purposes, that ‘nearly all of rural Java is Muslim.’ However, based on an opt-out rule – see consensus by heirs in previous footnote – Javanese in practice use customary law for widows’ inheritance: ‘Under customary practice, a surviving spouse generally inherits all marital property and separate property if the couple’s children are still young. If the children are adults and the surviving spouse is elderly, all of the decedent’s property passes directly to the children. It is generally understood that if the property passes to the children while one parent is still alive, the children remain responsible for caring for their surviving parent’ (ibid.).
As regards East Asia, available English language research offers no indication that widows suffer eviction through disinheritance by relatives as in Sub-Saharan Africa and South Asia. In practical terms widows are not disinherited, in that they do not lose the use of and access to home and land, but they are not permitted unilaterally to alter the constitution of their property. There is however technical disinheritance, as in Laos, Vietnam, and part of Indonesia.
The available evidence on East Asia indicates that widows do not suffer the symbolic bias prevalent in Hindu communities of South Asia, such as inauspiciousness due to perceived immoral conduct in a past life, nor the criminal exploitation of assets and supernatural suspicions seen in Sub-Saharan African societies. By comparison, East Asian widows appear to benefit from a higher cultural status, However, there is evidence of suspicion about their sexual availability, covered later in this report.
While the evidence suggests that disinheritance is relatively common in many developing countries across the world, the majority of available data shows that the most serious violations of widows’ human rights in this regard occur in South Asia and Sub-Saharan Africa. Within these two regions, most of the data applies to southern and eastern regions of Sub-Saharan Africa and to India. The majority of references in a research publication providing and annotated bibliography on women’s inheritance in developing countries are for Sub-Saharan Africa and the second most referenced area is India. Almost all of these references were for a small sub-set of countries: Kenya, Malawi, Mozambique, Rwanda, South Africa, Tanzania, Zambia and Zimbabwe.
Physical eviction from the family is a common feature of the disinheritance ordeal in South Asia and Sub-Saharan Africa, with serious consequences for widows and their children. A study on widows working as prostitutes in Calcutta in north east India illustrates:
‘Munni is a twenty-four year old widow from Bihar. She has a nine-year old daughter from her marriage. Less than a year after her husband’s death, her in-laws threw her and her daughter out of the house. She travelled to Calcutta as she had a friend there who managed to get her a job working as a housemaid. The position was a live-in job, so she and her daughter had a place to live as well as the income….[after some time] her employer – the man of the house – started sexually harassing her. For months she had to submit to his sexual advances….One day his wife discovered what was happening and immediately threw Munni and her daughter out onto the street. For a while they begged on the streets. One day a woman approached them and brought Munni and her daughter to Kalighat red light [prostitution] area. Munni began practising as a sex worker….She is resigned to her life here but does not want her daughter to join the profession. After paying her daily room rent….and paying the police their regular bribe to leave her alone, she is left with enough to employ an ayah [child minder for her daughter] in the evenings when she works. Her immediate problem now is a landlord who troubles her a lot, who has beaten and raped her when she has been unable to pay the rent.’ (Chen 2000: 33, citing Sleightholme 1995: 4)
For rural Sub-Saharan African women, disinheritance is a crucial issue, with a level of seriousness not typically seen elsewhere in the world. (The region with the closest resemblance is South Asia.) As elsewhere, Sub-Saharan African widows suffer from an absence of effective alternative livelihoods when they lose subsistence agriculture and husbands’ cash incomes. With respect to property, what makes the Sub-Saharan widows’ situation stand out is the high risk of eviction by relatives on becoming a widow. This leads to migration in a destitute state with only the clothes they are wearing, as often all property down to cooking utensils is confiscated. Their chances of rebuilding their lives and those of their children are further undermined by the HIV/AIDS pandemic if sex work becomes the only option for immediate survival. Disinheritance and property and asset theft have also been reported among urban widows in Nigeria: ‘family members [of the deceased husband] may have moved into the [widow’s] home, or taken the car, or cleaned out the family bank account’ (see Immigration and Refugee Board of Canada 2000). The chances of disinheritance and destitution are higher for young widows with no children, or with no sons, as shown in this example in Nigeria:
‘…if the man died without the couple having had children, it would be much more likely that the family [of the deceased husband] would challenge the widow’s inheritance rights… In rural settings, widows are at a particular disadvantage where the husband’s family is much more likely to go directly to traditional courts [using customary law], which ‘always rule against widows.’ In an urban setting the regular courts [civil courts] may rule in her favour, but the widow will often face the obstacles of getting the property back from the family.’ (ibid.)
Similar evidence of the bias of ‘traditional’ courts is found on the other side of Africa, in a study of rural Tanzanian widows (Kessy, Makaramba and Kiria 2008: x). In the Democratic Republic of Congo, a widow states: ‘here widows are treated very badly. Normally what happens is that the family take the children and all the belongings, and send the widow back to her family’ (Guardian 2008).
Kenyan widow Theresa Murunga recounted in 2002 that ‘My in-laws took everything – mattresses, blankets, utensils. They chased me away like a dog. I was voiceless’ (Sweetman 2006: 1). Another Kenyan widow tells her story:
When Susan Wagitangu’s parents died, her brothers inherited the family land. ‘My sister and I didn’t inherit,’ said Wagitangu, 53-year-old Kikuyu woman. ‘Traditionally, in my culture, once a woman gets married, she does not inherit from her father.’ The assumption is that once a woman gets married she will be given land where she got married. This was not the case for Wagitangu: when her husband died, her brothers-in-law forced her off that homestead and took her cows. Wagitangu now lives in a Nairobi slum. ‘Nairobi has advantages,’ she said. ‘If I don’t have food, I can scavenge in the garbage dump.’ (Human Rights Watch 2003)
A far starker tradition in many Sub-Saharan African rural societies is that widows are literally ‘inherited’, through forced re-marriage to a brother of the deceased husband (Conroy and Whiteside 2006: 55; Potash 1986). The purpose behind widow inheritance, not to be confused with widows’ property inheritance, is to keep the property of the husband and the husband’s children, particularly male children, inside the husband’s family. Children have economic and cultural value: they continue the inter-generational reciprocity of family care and support, and they ensure continuation of the family lineage.
In other cases, widows have been known not to remarry and to remain within the husband’s family. The evidence suggests it can be possible for a widow to return to her parents’ home, depending on the practices of individual ethnic groups (Salamone 1986). Betty Potash has emphasised that there is great heterogeneity in the practices affecting widows in Sub-Saharan Africa, so one model of behaviour cannot be assumed to apply uniformly across the continent. Brydon and Chant make the same observation: ‘…the range of patterns of land-holding is as varied here [in Sub-Saharan Africa] as the range of kinship and inheritance patterns, with or without an overlay of Islam, Christianity or modern ‘bureaucracy’ (state control)’ (Brydon and Chant 1989: 83). However, the evidence suggests that Sub-Saharan African widows more often do not have a choice about where to live and whether or not to remarry.
In Kenya we can see differences between ethnic groups. For the Nandi, it is rare for widows to remarry the deceased husband’s brother – a custom known as levirate – and ‘control over resources through the household complex enables a widow to refuse the levirate.’ The Luo on the other hand require it: ‘women are expected to continue bearing children [i.e. to remarry]…. a widow’s status and her security in old age depend on having many sons’ (Potash 1986: 10-11).
Disinheritance and levirate have become aggravating issues for widows as a result of the HIV/AIDS crisis, the dynamics of which are further described in section 5.1.2.
Disinheritance is made possible in a significant number of South Asian and Sub-Saharan countries which are lacking in provisions for protecting widows and where laws have not been standardised, thus allowing the simultaneous application of statutory, customary and religious law (Von Struensee 2004: 4; Horrell and Krishnan 2007: 1353-1354).
Poor implementation and enforcement of modern legal systems, combined with widespread ignorance of their existence and processes among the rural population in the least developed parts of the world, ensure that customary law operates by default in most Sub-Saharan African countries, as reported in Ghana, Nigeria, Tanzania, Zambia and Zimbabwe (ibid.; Nytimes.com 2004; Immigration and Refugee Board of Canada 2000; Kessy et al 2008). Appropriation of inheritance by the husband’s family and forcible eviction of the widow from her home and land and now illegal in Namibia, but the practice persists due to a weak legal system (Thomas 2008: 73).
This is against a background where most countries have adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), including the provision that this supersedes all domestic law.
The relevant CEDAW provision for widows’ inheritance is Article 16(h), paragraph 74 (Forward-Looking Strategies), which states: ‘State Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: the same rights for both spouses in respect of the ownership, acquisition, enjoyment and disposition of property.’
The existence and ratification of CEDAW in many countries, together with the existence of modern law, have however offered little protection to widows, where affordability and lack of enforcement undermine the rule of law. There is also outright obstruction of gender-neutral policies by politicians in many countries in spite of their official declarations to the contrary. Uganda is a notable example (Asiimwe 2002: 125-126). Bina Agarwal, a specialist in women’s property rights also observes regarding South Asia that ‘The idea of ‘command’ over property implies not merely rights in law, but also effective rights in practice. The gap between inheritance law and its practice is especially wide. Indian women legally enjoy significant inheritance rights (even if unequal to men’s). In practice, only a small percentage inherit. This is especially true of immoveable property such as land or a house’ (Agarwal 2007: 219).
In Sub-Saharan Africa, widows’ disinheritance is referred to in a form of Pan-African dialect by the term ‘grabbing’. This describes relatives’ immediate action, on the death of the husband, to evict the widow from her home and plot of land and incorporate it into their holdings. This is property theft in practice if not in law: in some Sub-Saharan African countries such as Swaziland, widows’ rights to inheritance or to own property at all is not recognised in law.
‘Grabbing’ widows’ property is also reported as widespread across Bangladesh, northern India and Pakistan; evidence also exists in the West Bank in Palestine (Moors 1996: 80). ‘Grabbing’ can take a different form when the husband has more than one widow. Resource value is diminished and even the prospect of any inheritance is in question when more than one wife exists, with the original wife sometimes having no knowledge of additional wives when men migrate for work and have married again. Multiple wives are common in several regions, including South Asia and the Arab states, as well as Sub-Saharan Africa.
Widows’ loss of land and property has also been documented as a result of natural disaster and war, when they are displaced as refugees from their homes (Fitzpatrick 2008; Baldauf 2005; Owen 1996: 175).
With eviction often the result of resisting forced re-marriage to the husband’s brother, this ‘safety net’, which retains the land and property within the husband’s family is often the only clear option for her to maintain her livelihood. It poses particular risks in the context of HIV/AIDS. Widows or husbands’ brothers are often infected, so continued transmission of the virus is assured (see section 5.3.4).
Victims of disinheritance or property-grabbing include child widows such as Kunese, age 16, from Tanzania, who recounts her experience:
‘I was married when I was about 13 years old; it was through an arranged marriage by my father. I stayed with my husband for three years and then I experienced the trauma and grief of his death. I cared for my bedridden husband for some months and no relatives helped. After the death of my husband, my brother-in-law evicted me from the matrimonial home and squandered all the matrimonial property. I moved to my father’s hut with my two children. We slept on the floor. I begged from neighbours for my daily food and one child was often sick.’ (Moors 1996: 80)
An in-depth study of widows in rural Kenya shows that land grabbing is not a recent phenomenon and has been increasing over time. It appears to date from the government land reforms that followed independence. The study provides examples of evictions and land theft from widows from the early 1970s. Many affected widows had written, with help if illiterate, to authorities locally and in Nairobi:
‘I came across nearly two hundred such letters from widows to the district officers and to the Ministry of Lands and Settlements, all of which expressed their strong dissatisfaction with land consolidation and registration [i.e. reform]. The process was obviously not working out as intended – partly because bribery and corruption hindered the fair and equitable distribution of land, but also because the intensive labour involved in cultivating the larger plots made it difficult for widows to achieve any success…. when Jedida Karani could not get her land adjudicated because the officers preferred to serve those who had paid them bribes, she asked her daughter to write a letter of complaint to [Member of Parliament Peter] Kibisu. Karani informed him that she felt she was being discriminated against because she was a widow and had no money for bribes. By the end of the 1980s, many widows still do not have their land registered. A national survey showed that fewer than 30 percent of peasants in western Kenya had title deeds. Of those, only five percent could afford to plant the more lucrative crops such as tea or coffee. Jedida Karani was one of the fortunate few who managed to register her land. Close to 70 years old, Karani still looks youthful and continues to earn a decent income by growing tea. Many widows were not so lucky.’ (Magoke-Mhoja 2008)
Evidence from rural Tanzania shows a high proportion of widows, 62 percent in one locality, when faced with the loss of access to their deceased husbands’ property, had to resort to clearing new land – previously unfarmed wilderness – for cultivation (Van Vuuren 2003: 126).
The appropriation of widows’ inheritance can, in the context of limited economic opportunities, be seen as an attempt to improve family options. Partha Dasgupta, an Indian development economist who combines sociological, demographic and economic perspectives, has observed that social norms survive only as long as the economic systems that support them (Dasgupta 1993: 324).
Duncan Green, former head of research at Oxfam GB, points out that ‘without legal rights to own property, regardless of marital status, most women living in poverty in developing countries depend on their relationship with men to deliver [a home and place to work]. Hence [female] livelihoods are precarious. If the relationship sours, or if a man falls ill and dies, how are they and their children to survive?’ (Green 2008: 77-78).
While the effects of property on the well-being of widows is rarely mentioned, high level international policy planners explicitly acknowledge the centrality of property rights in relation to women generally (Quisumbing and Meinzen-Dick 2001: 1).
Property rights regimes with more favourable outcomes for widows are to be found in parts of Central and South America. While these parts of the world remain challenging places for women in general, and the inheritance regimes are not perfect, they do offer greater security than elsewhere in the developing world (Deere and Léon 2001).
Countries can be grouped by type of inheritance regime. Unlike other parts of the developing world, where the formal use of wills either does not exist or is overriden by customary law, in Central and South America it makes a difference whether the husband dies with or without a will. When considering inheritance outcomes for widows (or women in consensual unions, a state which is formally recognised in the civil law of most of these countries), the starting point is therefore whether the deceased left a will or died intestate. Only after this, we look at the inheritance regime of the individual country (ibid.).
Countries differ as to the ‘testamentary freedom’ the will writer has for allocating items to individual recipients, and the type of marital regime in place. Some rely solely on testamentary freedom, while others rely on the type of marital regime in combination with testamentary freedom. When a husband’s will does not leave anything to the wife, some countries provide for a discretionary inheritance based on the widow’s ‘…economic need and the relative economic position of husband and wife’ (ibid.).
Table 5.2 is based on data from Deere and Léon 2001, which excludes Argentina, Belize, Panama, Paraguay and Uruguay. It shows that when a will exists in, for example, Bolivia, one fifth of the property can be freely given to any individuals, while the rest is automatically allocated to the living children and spouse (for the purposes of this Report, the widow). Where it refers to ‘marital share’, this is allocated to the widow where the husband has not made any allocation in the will. The actual marital share depends on the widow’s economic need ‘…and the relative economic position of husband and wife’. Next, the first rank order for inheritors of people who die intestate designates an automatic equal share to each individual listed, for example, in Bolivia the children, the spouse, and the parents each receive an equal share. Some countries, like Brazil, stipulate that in intestate deaths, 25 percent is allocated to the widow. The second rank applies when the deceased individual has no living children, in Brazil among other countries. However, in Brazil and Guatemala, the type of marital regime type, or the default marital regime (defined below) where none has been stipulated by the couple, critically determines the inheritance outcome for widows. In Table 5.2 this has been stated using Deere and Léon’s work. Since they do not specify the implications of marital regime in Brazil and Guatemala, the entries for these countries are incomplete.
In summary, Deere and Léon state that in Central and South America, where a will exists, ‘the civil codes most favourable to widows are those of Bolivia and Peru, for testamentary freedom is restricted in their and their children’s favour, irrespective of the size of the spouses’ patrimony’. They continue: ‘in the other countries with provisions protecting spouses (Chile, Colombia, Ecuador, Honduras and Nicaragua), whether the widow is guaranteed a share of her husband’s estate if he has willed otherwise depends on her economic need and the relative economic position of husband and wife.’ Honduras and Nicaragua have relatively little protection for widows, allowing 75 percent property to be willed without restriction and providing only a marital share for widows. Four countries have complete testamentary freedom: Costa Rica, El Salvador, Guatemala and Mexico. For widows, the significance of this ‘freedom’ is that the widow’s property share is entirely at the discretion of the husband. The likely consequences are summed up by Deere and Léon: ‘Testamentary freedom probably did open the way for greater inequality in property ownership by sex and, due to gender roles, may also have enhanced differences in the composition of inheritance, with sons favoured by the inheritance of land.’
Gender roles also impact equality of property ownership in rural Costa Rica, where widows are often forced to move to urban locations where it is easier for them to establish livelihoods, since in rural areas, subsistence needs are ‘as determined by a judge’ (ibid.). Brazil and Guatemala provide complicated options, some very unfavourable to widows (see Table 5.2). What is clear is that heavy gender segregation creates great difficulty conducting agriculture without male family or spousal input (Chant 1997: 132).
El Salvador provides greater security for widows whose husbands died intestate, similar to Bolivia and Peru. While widows of intestate husbands in the other South and Central American countries considered here receive a marital share, the size of such share in Ecuador, Colombia, Honduras, and Nicaragua, means that in practice none of the inheritance options allow for widows in those countries ‘…maintaining control of the family farm or business – that is, providing for their own economic autonomy’ (ibid.).
