WORKING PAPER NO. 17
Intergenerational Poverty and Disability:
The implications of inheritance policy and practice on
persons with disabilities in the developing world
By Dr Nora Ellen Groce, Jillian London and Dr Michael Ashley
Stein
Intergenerational Poverty and Disability: The
implications of inheritance policy and practice on
persons with disabilities in the developing world.
Working Paper Series: No. 17
Nora Ellen Groce, PhD
Leonard Cheshire Disablity and Inclusive Development Centre,
Univeristy College London
nora.groce@ucl.ac.uk
Jillian London, MSc
Havard Law School
Michael Ashley Stein, J.D, PhD
Harvard Law Project on Disability,
Harvard Law School
Full Working Paper Series
http://www.ucl.ac.uk/lc-ccr/centrepublications/workingpapers
Cover photo © Leonard Cheshire Disability/Fran Black
ABSTRACT
The estimated one billion people who live with disabilities (15% of the
world’s population) are among the poorest and most marginalized of all the
world’s peoples. Over the past decade, a growing body of research has begun
to examine the feedback loop between poverty and disability to better
understand where interventions can most effectively be made to break the
links between poverty and disability. In this paper, we examine the existing
data and discuss the implications of current inheritance policies and practises
that affect the lives of persons with disabilities and their families, arguing that
when persons with disabilities are routinely denied equal rights to inherit
wealth or property, this denial has a profound impact on their ability to provide
for themselves and their families. The stigma, prejudice and social isolation
faced by persons with disabilities and the widespread lack of education, social
support networks, and the right to appeal injustices at the family, community
or national level, further limits the ability of persons with disability to contest
inequities encountered in inheritance policies and practices. This denial of
equality in inheritance has profound implications for intergenerational poverty
among persons with disabilities. Inheritance has increasingly attracted the
attention of researchers and policy makers working on intergenerational and
multidimensional aspects of global poverty. However, until now persons with
disabilities have been overlooked in discussions of poverty and inheritance.
This phenomenon can no longer be overlooked if significant progress is to be
made in bringing persons with disabilities into the development mainstream.
1
ACKNOWLEDGEMENTS
We gratefully acknowledge funding from the UK Department for International
Development (DFID) through the Cross-Cutting Disability Research Programme to
the Leonard Cheshire Disability and Inclusive Development Centre, University
College London. We also thank Dr (Michael) Miles for his assistance in identifying
additional historic references on inheritance and disability.
2
CONTENTS
Abstract ........................................................................................................... 1
Acknowledgements ......................................................................................... 2
Introduction ...................................................................................................... 4
Methodology .................................................................................................... 8
Results ............................................................................................................ 9
Discussion ..................................................................................................... 33
Conclusions and Recommendations ............................................................. 36
References .................................................................................................... 41
3
INTRODUCTION
Over the past decade, a small but growing body of literature has begun to
examine the links between poverty and disability in order to better understand how
such ties can be broken and where interventions can be most effectively
implemented to improve the lives of disabled persons and their families (Yeo 2001,
Parnes 2009, Trani et al 2010)1. Disabled men and women in many countries face
stigma, prejudice and social isolation, while lacking the education, social support
networks, and legal right to appeal injustices at the family, community or national
level (DFID 2000; Lang et al 2011).
Issues such as social inclusion and equity,
access to education, job training and employment, micro-credit and social support
systems have all been examined as important components in breaking cycles of
poverty among persons with disabilities (Elwan 1999, Yeo 2001, Braithwaite and
Mont 2010). These research efforts are beginning to show that the issue of poverty
among persons with disabilities and households with disabled members may be
more complex and nuanced than originally thought, and that interventions to alleviate
poverty among persons with disabilities must consider barriers to full inclusion at
1
We define disability in line with the UN Convention on the Rights of Persons with Disabilities,
which states, “Persons with disabilities include those who have long-term physical, mental, intellectual
or sensory impairments which in interaction with various barriers may hinder their full and effective
participation in society on an equal basis with others.” We recognize that not all articles cited in this
review use the same definition; we believe that this definition is broad enough to encompass most
people with disabilities about whom this discussion of inheritance is intended to relate.
4
structural levels far beyond that of the individual and the community (Barron
and Ncube 2011; Groce et al 2011). Yet one significant emergent area of
concern in global poverty and economic development that is as yet wholly
unexplored as it relates to persons with disabilities is the link between
inheritance and poverty.
Recent advances in legislation, including the United Nations
Convention on the Rights of Persons with Disabilities (CRPD), guarantee
equal rights to social and legal protection for persons with disabilities
worldwide (UN, 2006). This includes the equal right to own or inherit property
cited specifically in Article 12 of the Convention. Despite such advances, in
this working paper, we will argue that millions of persons with disabilities in
countries around the world continue to face discrimination in inheritance
practices, and that this has profound implications for intergenerational
poverty, particularly for persons with disabilities in low- and middle-income
countries. Such discriminatory inheritance practices continue to occur
because many local practitioners within formal legal systems — lawyers and
judges — are unaware of or uninterested in the legal changes underway
regarding disability, and because customary/traditional legal systems and
practices limit the right of persons with disabilities to inherit property, the
ability to hold on to property that they do inherit, or the right to appeal
decisions made by other members of their families and communities
regarding division of property over time.
5
Although a developed body of research on inheritance and disability has yet
to be established, anecdotes regarding the denial within families or through the
courts of the right of persons with disabilities to inherit land, property or money, or to
decide for themselves how to dispose of such wealth as they do inherit, are
common. For those persons with disabilities who already live in poverty, who are
less likely to marry or receive an education, who face discrimination in job training
and employment, and who are socially isolated, the inability to inherit property is
often a final blow, moving many from poverty to destitution.
These anecdotes reflect a number of issues.2 The account of one 38 year old
disabled Nigerian woman reflects the fate of many. Disabled by polio as a child, this
woman worked side by side with her non-disabled husband for 18 years to build up a
small business, where they sold tobacco, bananas and lottery tickets. Within a week
of her husband’s death, his brother, with the backing of the man’s own parents, had
taken the shop over and thrown her and her three children out on the streets,
commenting that his brother should not have ‘married a cripple’ in the first place. In
Tanzania, it was a deaf son who found that while he and each of his six brothers and
sisters had been left 1/16th of an acre by his father, his siblings had decided that he
‘did not need’ the land because he ‘could beg to earn the same amount of money.’ A
2
The following anecdotes are taken from field observations and/or results from
qualitative research projects undertaken by the authors (NG & MS).
6
farmer all his life, he now lives on the streets of Dar es Salaam, far from the
rural community he grew up with, washing cars and asking for handouts.
Of note, almost no research has been pursued regarding inheritance
rights as these relate to persons with disabilities, particularly in low and middle
income countries. It is an issue almost wholly unaddressed in the disability
studies literature, it has been largely overlooked in the development literature
that is now tackling issues of women and inheritance, and a search of the
social justice literature reveals a comparable lack of attention.
To address this gap in research this article provides an initial review of
what know is currently known about inheritance and disability. Based on a
critical review of the legal, social science and development literatures relating
to inheritance, poverty, and disability in the developing world, we here
examine inheritance and poverty in the context of disability and discuss why
further study into this realm is an important—and currently missing
component—in efforts to address the devastating effects of poverty on
persons with disabilities worldwide.3
3
Because of time constraints we have limited this inquiry to low- and middle income
countries, but we note that many of the issues raised here are also relevant to issues of equity and
poverty among persons with disabilities in developed countries as well.
7
METHODOLOGY
This study began with a desk review of existing evidence relating to
inheritance and disability and a review of the existing literature that addresses links
between poverty and inheritance. The following social science, international
development and legal databases were searched:
Abstracts in Anthropology
Google Scholar
EconLit
Family & Society Studies
IBBS
Index of Foreign Legal Periodicals
JSTOR
JSTOR Anthropology
Legal Journals Index
PubMed
PsychInfo
SSCI
Web of Science
Women’s Studies International
Combinations of the terms ‘disabled persons’, ‘disability’, ‘handicap’,
‘inheritance’, ‘comparative inheritance’, ‘succession’, ‘poverty’, ‘customary law’, and
‘discrimination’ were used. Since we are interested in multiple ways in which
property and assets are transferred between individuals, our search also included
the terms ‘dowry’ and ‘bridewealth’. Noting that disability and development efforts
have recently begun to discuss some of the same issues as these relate to women
and development, the terms ‘gender’ and ‘women’ was also used in our searches.
Additionally, all major disability journals were searched for the term ‘inheritance’; a
general Google search of disability and inheritance was conducted, and Nexis UK
was reviewed for any newspaper articles relating to the topic and websites,
8
magazines, newsletters and case law, was also reviewed for any mention of
inheritance as it related to adults or children with disabilities.
Because we are looking at disability and poverty issues in low- and
middle-income countries, we did not review the literature on disability and
inheritance in the developed world, although we acknowledge that this is an
arena of significance that warrants further study and we hope to return to this
issue in future work, however we should note here that there was also little in
the literature that pertained to this subject in developed countries.
RESULTS
Development as it relates to Disability and Poverty
The close links and feedback loops as these relate to disability and
poverty have been discussed by numerous authors (Elwan,1999; Zimmer
2008; Parnes et al., 2009, Mitra et al., 2011). Many components of this links
are now well known. Lack of access to clean water, basic sanitation,
nutritious food, health care and education all disproportionately impact the
poor and can result in disability (DFID 2000, Parnes 2009). An individual who
is born with or who becomes disabled is more likely to be poor, not because
of their disability but rather because that individual faces social
marginalization and has significantly less chance of accessing health care,
education or employment, which leads to poverty and makes it difficult for that
individual to work his or her way out of poverty (Mitra et al., 2009, Parnes
9
2009, Trani & Loeb 2012, World Bank 2007). Additionally, households with disabled
individuals are more likely than households without disabled members to have lower
incomes, fewer possessions, less access to information, lower housing standards,
and greater expenses (Eide et al., 2003a, Eide et al., 2003b, Eide & Loeb 2006, Eide
& Kamaleri 2006, Loeb & Eide 2004). All of this can lead to poverty, which in turn
results in restricted access to safe housing, food, health care and other key
development components that leads to further ill-health and poverty (Trani et al.,
2010; Groce et al., 2011). This poverty and entrenched social exclusion affects not
only the individual, but also the household and often extended family as a whole.
The strong links between disability and poverty are of particular note because
of the estimated size of the global disability population—according to the recently
released World Disability Report, over one billion people worldwide (15% of the
global population) live with disability (World Health Organization, 2011). Even in
communities where overall poverty unemployment rates are low and poverty rates
for persons with disabilities are consistently higher than for all other vulnerable
populations in the surrounding community (Elwan 1999, DFID 2000, Barron and
Ncube 2010, UN Enable 2011). One in every four households has a member with a
disability, 90% of all disabled children still do not attend school and unemployment
rates for adults with disabilities are often above 80%.
The links between poverty and disability are addressed throughout the new
UN Convention on the Rights of Persons with Disabilities (UN, 2006). In the
Preamble, as well as in Articles 28 and 38 the equal inclusion of persons with
10
disabilities in all development and global health efforts is established as a
‘right’. The Convention in turn, has led to a series of new initiatives within the
UN system to incorporate people with disabilities into all current and future
Millennium Development Goal (MDGs) efforts (United Nations 2011). This
focus on poverty reduction is a foundational goal of the new WHO Guidelines
on Community-Based Rehabilitation (WHO, 2010) and has served to move
efforts forward on the broader inclusion of persons with disabilities in
development activities in major UN agencies such as the World Bank,
UNICEF and UNDP. Bilateral and multilateral donor agencies are also
beginning to recognise the necessity of addressing disability issues in efforts
aimed at significantly reducing poverty levels and improving health (DFID,
2000, 2007; Thomas, 2005), both in inclusive general outreach efforts, or in
disability-specific initiatives, many of which are linked either implicitly or
explicitly to poverty alleviation efforts or public health initiatives (for example,
in the US Agency for International Development (US AID), Australia (AusAid),
DFID, Japan International Cooperation Agency (JICA, 2006), Swedish
International Development Agency (SIDA), and Deutsche Gesellschaft für
Internationale Zusammenarbeit (GTZ, 2006).
Despite this growing body of research and practice on disability and
poverty, strikingly little attention has been directed to the nature of transgenerational poverty and disability, nor to the manner in which distribution of
and access to family and household assets affects individuals with disabilities
over the course of the lifecycle. This lack of attention is perhaps
11
understandable: it is only in recent years that focus on how inheritance practices
among the poor affects individuals has begun to be part of the global discourse on
poverty and development, and there is still much that is largely unknown or poorly
understood within this area.(Cooper 2010a).
Inheritance
Before discussing the link between inheritance, poverty, and disability, it is
important to have a general understanding of the major features of inheritance
practices worldwide and to discuss how these relate to poverty at the individual and
household level. Inheritance is a critical means of transferring wealth from one
generation to the next. It has been broadly characterized to include the transfer of
property and/or other assets from one’s ancestors at various moments in the
lifecycle, including birth, death, marriage (often involving dowry or bridewealth), and
retirement from work (Cooper, 2010a).
A society’s kinship organization, its social structure, and its ideas about
freedom, wealth, and equality are all reflected in its inheritance patterns (La Ferrara,
2007; Cooper, 2010a; Doss et al., 2011; Hacker, 2010). Thus, inheritance is not only
an economic issue but also a social justice issue. Inequity in the distribution of
inheritance often reflects existing inequities within the society, leaving those denied
an equal inheritance not only poorer than other family members or destitute, but also
with fewer rights to decision making within the family and the community (Cooper,
2010a). Because of this, inheritance has recently begun to receive significant
attention in women and development and gender studies literatures, as women in
developing countries often face discriminatory inheritance practices, both under
12
national laws and customary laws (Agarwal, 1994; Cooper, 2010a; Cooper,
2010b; Deere and Doss, 2006; Doss et al., 2011; Hacker, 2010). While much
of the literature discussing inheritance and poverty in the developing world is
related to women’s rights, the framework provided by the gender and
inheritance literature is extremely useful for considering how inheritance
affects persons with disabilities.
Inheritance regimes vary widely across countries and ethnic groups,
and in the developing world often involve the interplay between national law
and customary law. Inheritance can be either testate (when there is a will) or
intestate (there is no will and property devolves according to a society’s
governing inheritance laws). A state can affect inheritance practices by
limiting testamentary freedom (the amount of a person’s property that an
individual is allowed to devise by will) and through their intestate inheritance
laws, which establish who will inherit property in the absence of a will (Deere
and Doss, 2006). A state can also affect inheritance practices by determining
whether or not to respect the customary laws of an ethnic or tribal community
living within its borders.
Inheritance regimes are either bilineal, in which property runs along
both the male and the female ancestral lines, or unilineal, in which property
devolves along either only the male or only the female ancestral line (Nauck,
2010; La Ferrara, 2011; Hacker, 2010; Cooper, 2010a). While much of the
developed world has adopted a bilineal inheritance system (including the US
13
and the UK), most of the developing world still maintains a unilineal system of
inheritance. There are two unilineal forms: matrilineal and patrilineal. In a matrilineal
matrilineal system, property devolves along the mother’s ancestral line so that a
a man’s heirs are his sister’s children. In a patrilineal system, property devolves
along the male ancestral line, usually to a man’s siblings and/or to his children (ibid.).
Whether a community has a patrilineal or matrilineal inheritance system is generally
linked to whether their wider kinship system is matrilineal or patrilineal. However, as
Cooper notes, inheritance practices do not always perfectly follow a matrilineal or
patrilineal pattern, as inheritance decisions are often made as a result of “unique
personal relationships” whereby an individual can often give land and other assets to
someone close to them who is not within the society’s traditional line of descent
(Cooper 2010a). This can be achieved through inter vivos transfers (where an
individual transfers property to an heir during his lifetime) or through the creation of a
will (although the will is not always followed by surrounding family and community
members) (Cooper, 2010a; Nauck, 2010; La Ferrara, 2011; Hacker 2010).
Inheritance practices also are often determined in light of religious practices
and beliefs. For example, in Hindu inheritance law, which governs most of the
population of India and is also present in much of Sub-Saharan Africa, two schools
of law exist. Under the Dayabhaga School, a man is free to will all of his property as
he pleases. Under the Mitakshara School, however, a man’s property is divided into
personal property and joint ancestral property (often referred to as “coparceny”).
While a man may will his personal property as he sees fit, he is not allowed to will
joint ancestral property, which belongs equally to himself and his sons at birth.
14
Furthermore, daughters are not allowed to inherit ancestral property
(Sivaramayya, 1997). While the Hindu Succession Act of 1956 gives
daughters and sons in India equal inheritance rights to personal property, it
did not affect the distribution of ancestral property. Consequently, there is still
an unequal inheritance between sons and daughters in Mitakshara Hindu Law
(Carroll, 1991). Under Islamic inheritance law, which governs inheritance
practices in modern Muslim states as well as in much of India and among
many tribes in Sub-Saharan Africa, only one-third of an estate can generally
be willed freely, with the remainder being divided between the deceased’s
children and other required heirs (Deere and Doss, 2006). Furthermore,
daughters are entitled to only one-half the share of sons and widows are
entitled to only half of what widowers receive (Hacker, 2010).
Worldwide, there exists a wide variety of inheritance regimes and
practices that affect what property can be distributed and to whom that
property can be distributed. These practices often involve the interplay of
various religious, state, community and family laws and traditions, as well as
personal preferences and decisions. Any study of inheritance in the
developing world must therefore keep in mind the complexity of inheritance
systems as well as the multitude of actors involved in the distribution of an
individual’s wealth to the next generation.
Inheritance and Poverty
In her recent important review of the relationship between inheritance
and the inter-generational transmission of poverty in Sub-Saharan Africa,
15
Cooper notes that “inheritance is a major means for the transfer, or exclusion from
the transfer, of adults’ accumulated physical capital. As such, it can have positive or
negative effects on different people’s poverty statuses over the life course.
Inheritance events can either be boons of property accumulation or they can strip
people of their previous security of access to assets.” (Cooper, 2010a). The link
between inheritance and poverty has received growing attention within the
development literature, particularly in relation to how a lack of inheritance rights
affects women (Bird, 2007; Cooper, 2010a; Cooper, 2010b; Deere and Doss, 2006;
Doss et al, 2011; Agarwal, 1994). The new attention to inheritance reflects the
realisation that inheritance can provide the younger generation with the economic
means for an independent livelihood.
Control over assets can increase an individual’s productive capacity and help
individuals move out of poverty (Doss et al., 2011). Conversely, recent studies in
Sub-Saharan Africa have shown that a lack of inheritance “exacerbates vulnerability”
to chronic poverty and to inter-generational poverty transmission (Cooper, 2010a).
Those who are denied inheritance, even where only small amounts of property or
cash are involved, may face destitution. There are several key reasons why this is
so. For one thing, in the developing world inheritance is often one of the only means
that one has of obtaining property and other economic assets. Furthermore, the right
to dispose of property or land gives an individual a continuing voice in family and
community matters even when ill or elderly. ‘Property’ in this sense can be quite
limited, for instance, the bicycle, sewing machine or cook stove needed to continue
to be self-employed.
16
In addition, even if one is able to obtain money and other non-land
assets through alternative means, inheritance is often the major (or only)
method of obtaining rights to land (Agarwal, 1994; Cooper, 2010a). Land has
long been viewed as having singular importance in developing economies. In
addition to providing a means for “food, shelter and economic activities” and
to being a “primary source of wealth, social status, and power”, land gives one
access to other important resources critical to survival, such as water rights,
sanitation and electricity (Cooper, 2010a). Agarwal notes that “[i]n the
agrarian economies of South Asia…arable land is the most valued form of
property, for its economic, political and symbolic significance” (Agarwal,
1994). Control over land allows one to be self-sustaining, to obtain further
wealth through crop production, and to sell or lease all or part of the land in
times of economic need. It can also provide an individual with a sense of
identity, belonging, status, and the right to have a political voice within their
community. Furthermore, land is viewed by many in South Asia as having a
“durability and permanence which no other asset possesses” (Agarwal, 1994).
In the gender literature, there is evidence that increased access to land has
improved women’s welfare, productivity, equality and empowerment (Agarwal,
1994). There is reason to believe that access to land would have a similar
effect on persons with disabilities. If inheritance is one of the only means of
obtaining land, it is thus crucial to ensure that persons with disabilities are
guaranteed inheritance rights so that they too can gain access to and rights
17
over land, in addition to being able to inherit money and other physical assets that
will contribute to their overall level of wealth and well-being. It should also be noted
that while recent research has considered how the reform of inheritance laws and
practices could improve people’s abilities to escape poverty, there is a “significant
gap in empirical data concerning how inheritance systems work to prevent, escape
or exacerbate individuals’ and households’ poverty” (Cooper, 2010a). Thus, more
research is clearly needed in this area.
Inheritance as it Related to People with Disabilities
Given the preceding discussion of the link between inheritance and poverty, it
is next important to delineate the connection between persons with disabilities and
inheritance rights.
Here, the lack of attention to the subject, either in theory or practice, is
striking. In our desk study, more than 90 publications in 60 journals, books, websites,
and newspapers were identified for initial review based on some attention to various
aspects of inheritance, poverty and/or disability. Of these publications,
approximately 40 were selected for more in-depth review based on a reading of their
abstracts and introductions. Notably, we were unable to identify a single study in
any of the literatures that focuses exclusively or specifically on inheritance rights and
persons with disabilities in the developing world. However, we were able to identify
enough references in the literature to conclude that persons with disabilities are often
denied the same inheritance rights enjoyed by non-disabled individuals. It should
also be noted that where mention is made in the literature on disability and
inheritance practices, almost all examples are given as passing mention, with the
18
authors simply stating that persons with disabilities are denied inheritance
rights, without providing full explanation or evidence for this assertion.
Notably, the exclusion of persons with disabilities from inheritance
appears to have taken place throughout recorded history. Miles (2002) finds
that disability, property and inheritance mentioned in relation to one another in
a number of Asian texts. For example, in Al-Marghinani’s 12th century
scholarly commentary on Islam called the Hedaya, still used among South
Asian Muslims, it is noted that in the Qur’an, (Surah 4, verses 5-6),
intellectually disabled persons are prescribed guardianship and are not
allowed to maintain control over their own property because this would go
against their best interests (Al-Marghinani, 1975). Not all ancient Islamic
scholars agreed with these prohibitions, however. For example, the legal
scholar Abu Hanifa advocated for the withholding of the property of the person
with intellectual disabilities only until the age of 25, after which age, a person
should be given his property regardless of his capacity as denying property
after this point would be inhumane and would outweigh the risk of allowing the
intellectually disabled person to control his property.
Ancient Hindu Law texts also mention property and inheritance rights of
disabled persons. Disabled persons were discussed as being excluded from
inheritance in the Mitakshara from the 11th century CE (Miles, 1999). In
addition, Miles lists several Hindu law books where disability and inheritance
were mentioned in various web bibliographies (Miles, 2008). For example, in
19
the Minor Law Books, Narada from around the 4th/5th century CE notes the exclusion
of disabled persons from inheritance but also asserts that they must be maintained
and that their sons must be allowed to remain inheritors (Jolly, 1989). Similar
provisions calling for the exclusion of disabled persons from inheritance but the
requirement that they be maintained by others and/or that their sons be allowed to
inherit are found in other texts (see for example: Institutes of Vishnu, XV: 28-34
(Jolly, 1880); MANU, IX: 201-202 (Hopkins, 1995); Guatama, XXVIII: 43-44 from the
Sacred Laws of the Aryas (Bühler, 1897); and Baudhayana, I.2.3 and I.2.4 from
Sacred Laws of the Aryas, Part II (Bühler, 1882)). Interestingly, Miles (2008) also
notes in his bibliographies that Part II of the Pahlavi Texts from ancient Persia, (Ch.
LXII: 4) asserts that a son or his wife “who is blind in both eyes, or crippled in both
feet, or maimed in both his hands” is entitled to twice the share of a non-disabled son
(Müller, 1882).
Two articles on historic practices are of particular interest. Metzler, exploring
the history of disability in the Middle Ages, notes that the exclusion of “impaired
people” from rights of inheritance originates from Roman law and that this practice
was adopted in the Middle Ages. For example, in the law book containing the legal
code from Germany in the Middle Ages, called the Sachsenspiegel, “people born
‘dumb, blind, or lacking hand or foot’ were not allowed to inherit property according
to feudal law (Lehnsrecht) but could do so under territorial law (Landrecht)” (Metzler,
2011). Groce (1985) cites additional examples of denial of the rights of inheritance or
primogenitor for deaf persons in Medieval Europe. Buckingham, in her study on the
history of disability in India, notes that in pre-modern India persons with disabilities
20
were denied inheritance in the higher levels of Hindu caste society.
Buckingham discusses a dharmasastric text from the 4th century AD that listed
‘a madman, an idiot, one born blind, and he, who is afflicted by an incurable
disease’ as people who were rendered unable to inherit” due to the fact that
they were thought to lack the capacity to perform required family rituals
(Buckingham, 2011).
A further handful of recent articles in the development literature and in
the disability literature mention the current exclusion of persons with
disabilities from inheritance in the developing world when listing reasons for
the links between disability and poverty. For example, Zelina Sultana notes in
her study of disability and the Bangladesh legal system that Bangladeshi
inheritance law discriminates against persons with disabilities (Sultana, 2010).
In particular, the Lunacy Act 1912, which is still enforced, allows persons with
intellectual or mental disabilities to be declared incapable of managing their
property interest; thus, Muslim families governed by this law often keep
individuals with these disabilities from claiming their genuine share of the
family property. Furthermore, while the Hindu Inheritance (Removal of
Disabilities) Act 1928, which is also in force in Bangladesh, states that while
no person governed by Hindu Law who suffers from any disease, deformity,
or physical or mental defect may be excluded from inheritance or any other
share in joint family property, this requirement does not cover a person born
“a lunatic or idiot” (Sultana, 2010). Another example comes from the work of
Rebecca Yeo who, in her study on the relationship between chronic poverty
21
and disability in the developing world, asserts that in many low-income countries
persons with disabilities are low priority for, or are entirely excluded from inheritance
by, their families (Yeo, 2001). More specifically, Charles Lwanga-Ntale and Kate
Bird et al. (citing Lwanga-Ntale) note that in Uganda, customary law prohibits
persons with disabilities from inheriting land (Lwanga-Ntale, 2003; Bird et al. 2004).
Lwanga-Ntale quotes a group of disabled women in Uganda who told her “that a
disabled person cannot inherit land. A brother’s child may even be preferred in
inheritance if he is not disabled.”
The degree of exclusion from inheritance may depend not simply on the
presence or absence of disability but on the specific type of disability an individual
has, and on the social and cultural perceptions held about that specific type of
disability. Persons with intellectual or mental health disabilities may face greater
exclusion because they may be considered incapable of looking after property
themselves. This may be particularly relevant in the case of, for example, Hindu
Law, which places significant importance on joint ancestral property that belongs to
multiple family members, and also in many Sub-Saharan African societies where
property is considered communal. Since the family or community is likely to be
concerned with losing their joint estate, they may not trust a person with an
intellectual or mental health disability to look after the property interests of the family
or community. As Yeo notes, “Where there are limited resources it may be seen as
economically irresponsible to give an equal share of resources to a disabled child
who is perceived as unlikely to be able to provide for the family in the future” (Yeo,
2001).
22
Communal inheritance may not be the only issue. For example, a deaf
individual may be unable to communicate his ability to look after the property
and is likely to be unable to access the court system to challenge those who
deny him his inheritance rights, as few courts in developing countries provide
a sign language interpreter and poor deaf individuals are often unable to
afford to hire interpreters themselves (Groce and Keatley 2012). Although no
literature discussing the variation in inheritance rights for persons with
different types of disabilities was identified in this desk study, this is an area
for future research.
The double discrimination faced by women with disabilities is another
area for further exploration. Women with disabilities face stigma and
discrimination on account of both their gender and their disability and “unlike
other women, [women with disabilities] have little chance to enter a marriage
or inherit property that can offer a form of economic security” (Parnes et al.,
2009). In Nepal, society in which marriage is the norm, 80% of disabled
women do not marry (Dhungana, 2006) and while disabled men have property
rights, disabled women do not. Furthermore, given that women in Nepal
(disabled or not) are completely denied the right to inherit property on an
equal footing with men, the fact that women with disabilities are often denied
the opportunity to marry leaves them without any access to property rights
even through their husband (Dhungana, 2006).
(This speaks to a wider literature on women and disability with respect
to marriage which we will return to below).
23
Finally, it is important to note that traditional inheritance practices vary widely.
The evidence does not support the conclusion that all communities in all developing
countries follow discriminatory inheritance practices towards persons with
disabilities. Aud Talle in her study on disability among the Kenya Massai, for
example, notes that the Massai moral code requires that disabled children be given
equal treatment to non-disabled children, including in marriage and in the inheritance
of their parents’ livestock (Talle, 1995). Given the lack of research into inheritance
and disability among ethnic and tribal communities, it may be the case that other
groups share similar ideas about the equal rights of persons with disabilities although
this has yet to be noted in the literature.
Disability and the Practices of Dowry and Bridewealth
Another form of “inheritance” that is important to consider in relation to
persons with disabilities is the inheritance that occurs during the marriage process.
In many societies, marriage presents one of the major moments in life in which the
transfer of wealth from one generation to the next occurs.
There are two major forms of marriage related wealth transfer: dowry and
bridewealth. Dowry is more prevalent in Asian societies while bridewealth is common
in much of Sub-Saharan Africa. In the case of a dowry, property, money and/or
other assets are given by the bride’s family to the groom or his family. In the case of
bridewealth, property, money and/or other assets are given by the groom or his
family to the bride’s family (Cooper, 2010a).
24
In many cases, dowry is the only inheritance a woman will receive, as
she is denied the opportunity to inherit land and other assets from her family
through customary or formal law (Schlegel and Eloul, 1988; Carroll, 1991). In
other cases, dowry might form part of a woman’s inheritance, as she will still
receive her entitled share in the family’s wealth at the death of her father
and/or mother (Schlegel and Eloul, 1988). Some of the literature considers
dowry in particular to be a form of pre-mortem inheritance (Goody, 1976;
Nauck, 2010).
Significantly however, although many disabled adults do have
relationships, stigma, prejudice and customary laws in many countries mean
that they are less likely to formalize these relationships through marriage.
The result is that both men and women with disabilities, (but particularly
women with disabilities), will often live in relationships for years without the
benefit of marriage (WHO/UNFPA, 2009). This lack of formal marriage,
already identified as an issue in the links between poverty and disability
(Elwan, 1999; Yeo, 2001; Groce et al., 2011), also has profound implications
for inheritance, including the right to inheritance of property or resources
generated over the course of the relationship.
Even marriage does not ensure equitable treatment for persons with
disabilities. In societies where dowry or bridewealth is practiced, disabled
individuals or their families will often be required to pay a higher dowry or
bridewealth in order to obtain a marriage partner. In her discussion of
25
disabled women and the women’s and disability movements in India, Anita Ghai
explains that, because marriage involves the gifting of the virgin by her father to the
groom and his family, and because it is anticipated that that gift will be “perfect”, the
family of a disabled girl in India must often pay a higher dowry in order to
compensate for the daughter’s so-called imperfections (Ghai, 2002). Both Nilika
Mehrotra in her study of disabled women in rural Haryana and Monawar Hosain et
al. in their study of disability in Bangladesh report similar findings, noting reports of
disabled girls’ families having to pay heavy dowries in order to secure a marriage for
their disabled daughters (Mehrotra, 2004; Monowar Hosain et al., 2002). One study
of people with physical impairments in Dakar provided evidence of a similar situation
in relation to bridewealth, where obtaining a wife for a disabled son required payment
of a higher than normal bridewealth (Whyte and Ingstad, 1995), which can take
many years to collect.
In addition to the barrier presented by the need for higher dowry or
bridewealth, another issue raised in the literature reviewed is whether families were
generally willing to pay the higher dowry or bridewealth required in order to marry off
their disabled children. Over and above the potential inability or unwillingness to pay
this higher dowry or bridewealth, it is also important to keep in mind that even if a
higher dowry or bridewealth is forthcoming, finding a spouse for a disabled man or
woman can be particularly difficult given the stigma and discrimination persons with
disabilities face in many countries.
26
Disabled women appear to have a more difficult time than disabled
men in obtaining marriage partners, both because of the double stigma of
gender and disability, and the concern in many societies that a disabled
woman will be unable or less able to fill traditional roles required of wives and
daughter-in-laws, including the ability to have and raise healthy children
(Habib, 1995; Rahman and Ahmed, 1993). For many disabled women
marriages are not an option, but there are other possibilities that await some.
For example, in those societies which have polygamous marriage patterns,
women with disabilities are more likely to be junior wives with less right to
inherit whatever property exists. It is even the case that in some locations
disabled women unable to obtain marriage partners for themselves may
become “part” of their female family member’s dowry instead. In the course of
fieldwork, one author of this paper (NG) was told by a disabled informant that
she herself had been ‘given’ as part of her non-disabled sister’s dowry to her
sister’s husband’s family, who had in turn, married her to an elderly uncle
more than fifty years her senior, so that she could serve as his nurse.
In societies where marriage might be the only means for women to
obtain access to land and other assets, given their exclusion in post-mortem
inheritance, an inability to marry or to be the “first” wife may keep disabled
women from obtaining any form of wealth at all. It is also important to keep in
mind that often a significant portion or in some societies, all of the dowry will
not be received by the bride herself but will instead go to the groom and his
family (Tambiah et al., 1989). In such arrangements it is debatable whether
27
dowry should be considered to be a form of inheritance that could assist disabled
women in obtaining any independent wealth.
Legal Pluralism
Another issue that emerged during our review that is likely to have a
significant impact on the inheritance rights of persons with disabilities is legal
pluralism. Legal pluralism can be defined as “the coexistence and interaction
between multiple legal orders such as state, customary, religion, project and local
laws, all of which provide bases for claiming property rights” (Meinzen-Dick and
Pradhan, 2002).
In much of the developing world, there exist overlapping systems of law that
govern people’s lives. These systems often contradict and compete with one
another. It can be difficult to know which system is in control at the individual and
community level, and furthermore, what the law on the books says may not reflect
what occurs in practice. This can create significant difficulties when it comes to the
laws of inheritance. It is not unusual, for instance, for different parties to appeal to
different legal systems in order to assert their claim to inherit the same piece of
property (Irianto, 2004).
Statutory law recognizes the primacy of customary law when it comes to
inheritance in many countries. This can be disadvantageous for women and minority
groups whose statutory rights to equality before the law will be undermined by the
customary practices of their local communities. Cooper observes that Botswana,
Lesotho, Ghana, Kenya, Zambia and Zimbabwe exempt inheritance matters from the
28
gender-based non-discrimination provisions in their national laws (Cooper,
2010a). Irianto, in her study of the interaction between state and customary
law in Indonesian inheritance court cases, notes that formal Indonesian
regulation makes no mention of women having any title to inheritance (Irianto,
2004).
Reliance on customary law throughout Sub-Saharan Africa and
Southeast Asia often keeps women from inheriting or at least inheriting
equally with male family members. Such laws pertain to both
intergenerational inheritance (from parents for example) and from spouses.
Furthermore, much of customary law is uncodified, flexible, and often
changing (Kameri-Mbote, 1995; Bushbeck, 2006). As formal wills are often
unknown or ignored in African customary law, inheritance matters will almost
always be intestate (Mwenda et al., 2005). These two factors make it
relatively easy for family members and chief elders to manipulate customary
laws in order to keep or take property from women and other vulnerable
individuals.
Reviewing African customary laws Cooper (2010a) and Mwenda et al
(2005) both note that while national laws in many countries now guarantee
equal inheritance rights to all by statute, this does not mean that
discriminatory customary law does not still dominate. For example, while
Kenya’s new constitution, enacted in 2010, made it illegal to discriminate
against women in inheritance matters, many ethnic tribes have ignored the
29
new constitutional provisions and have instead maintained their discriminatory
customary practices denying women inheritance rights (Mbatiah, 2010). Additionally,
Additionally, property-grabbing by family members is common in much of SubSub-Saharan Africa, and even if property-grabbing is outlawed by the state, family
members ignore these laws while those individuals meant to enforce the law may fail
to do so as they often directly or indirectly benefit from the property-grabbing
themselves (Mwenda et al., 2005). While we already know that property-grabbing is
common among widows and orphaned children, numerous anecdotes throughout the
disability community and collected during fieldwork (NG nd) makes it evident that
disabled persons are routinely victims of property-grabbing and that they also lack
the ability to challenge these practices in state courts.
Vulnerable individuals may find it extremely difficult to bypass their family, and
traditional community leaders in order to assert their rights within the national legal
system, both because they are unaware of their legal rights and/or because they fear
retaliation or alienation by their family and community if they resort to non-community
based legal systems. Even if individuals are aware of statutory laws that protect
their inheritance rights, many may choose to go through local leaders and local
processes because they are more familiar and less expensive (Cooper, 2010b).
These local legal processes may be staffed by a justice who “lack[s] strong legal
training and who relies more on conventional wisdom than on rules of evidence and
substantive law” (Mwenda et al., 2005). And even if individuals are able to take their
cases before a state court, the court may still apply customary law and “take
30
personal relations, specific circumstances and backgrounds…into account,
not only strict legal rules” (Bushbeck, 2006).
An additional difficulty of statutory law is that it generally does not
recognize polygamous marriages, leaving women who are second or third
wives without any recourse to inheritance rights through state law at all. As
noted above, disabled women are often given as a second or third wife or
mistress, meaning that they are at increased risk of being left without recourse
to statutory inheritance rights because their position in and contribution to the
household is not legally recognized.
While most of the discussion in the literature centres around the
negative impact of customary law on the inheritance rights of women, similar
conclusions can likely be drawn for the impact of customary law on disabled
individuals who may be guaranteed the right to an equal inheritance by
statutory law but who are denied that inheritance because of the customary
laws in place. For example, in those communities where there is strong
stigma and prejudice against persons with disabilities or where persons with
disabilities are considered objects of charity and protection but not
independent adults, decisions made by local leaders or justices who believe
they are acting in these individuals’ best interests may have dire implications
for these individuals’ economic well being.
There may be other barriers as well. There are many reports of women
who have attempted to circumvent traditional inheritance systems by
31
appealing to state courts being threatened and beaten for having done so, and many
also face alienation from family and community after having questioned inequitable
inheritance practices (Agarwal, 1994; Mwenda et al., 2005). Threat of violence and
the prospect of alienation might be of increased concern for persons with disabilities
who already often face increased risk of violence both within and beyond their
families, as well as social isolation and marginalization. Alienation from family and
community for those persons with disabilities who are physically or psychologically
dependent on family for a number of activities of daily living, may present an
additional barrier to their willingness to appeal unfavourable inheritance decisions
and practices.
One more variation on the links between persons with disability and
inheritance is also worth noting. There is almost no mention in the developing world
literature – and little in literature from developed countries as well – of cases where
issues of inheritance affect decisions to institutionalize disabled relatives or threats of
institutionalization are used as leverage to gain compliance when inheritance matters
are discussed. Yet anecdotal evidence again indicates that where institutionalization
of persons with disabilities continues to be practiced, the links between inheritance
and decisions to institutionalize family members deserves further exploration.
A further exploration of customary and state law as it relates to inheritance
among persons with disabilities is crucial if we are to understand the underlying
processes that affect disabled persons’ economic status and the relationships
between disability and poverty.
32
DISCUSSION
The intergenerational links between disability, inheritance and cycles of
poverty deserves greater attention. In the preceding review of available data,
we have raised a number of key issues that warrant further investigation. As
we have noted, the link between inheritance and poverty has begun to receive
attention within the gender and development literature, and many of the
issues being raised have specific relevance to known issues within the realm
of disability and development. Although the literature establishing a direct link
between inheritance, poverty, and disability is currently strikingly thin we can
extrapolate from the gender and inheritance literature to anticipate key
difficulties disabled persons appear to also confront.
On the individual level, disabled persons are significantly less likely to
obtain an education and to have broad social networks that allow them the
levels of literacy, knowledge and awareness to learn about their inheritance
rights. As is the case with many impoverished women, persons with
disabilities may feel disempowered to assert their rights because they have
grown up facing stigma and discrimination and because they live in poverty
and lack the monetary resources to approach a lawyer or appeal to a judge or
court. Thus, there is a vicious circle in which disabled persons lack the
empowerment, education, resources and access to assert their inheritance
rights, while that very inheritance would potentially provide them with the
increased empowerment and access that would enable them to become full
participants in their families and communities.
33
Additionally, disabled persons face barriers on the community and family
level. It is well-established that an individual’s family and community have a
significant impact in shaping that individual’s opinions about themselves and their
capabilities. Even though the family/community may have the disabled person’s best
interests in mind, family and community members may convince persons with
disabilities that they lack the ability to adequately maintain property because they
truly fear the difficulties their disabled relative might face or they believe that if they
control this inheritance they will be better able to provide for their disabled relative as
a dependent. Much like the phenomenon of women relinquishing their inheritance
rights after being told by their family and community that doing so would be best for
all parties involved (Hacker, 2010), it is not unlikely that disabled individuals may
similarly relinquish their inheritance rights after facing surrounding pressure,
believing that they are best serving themselves and their families and communities
by doing so.
Situations may also exist in which persons with disabilities relinquish their
rights to inheritance to repay relatives, believing they have been a burden and this is
a way to ‘repay’ others for their care and concern.
Customary legal systems provide additional barriers. As customary law is
often flexible and open to manipulation, community members and community leaders
may use these systems to enforce discriminatory inheritance practices against
persons with disabilities, much as they do against women. Disabled persons’
34
already weak position within their communities makes it particularly difficult for
them to challenge the decisions of their chief, respected elders or local
judges.
Finally, legal pluralism means that it is often difficult for disabled
persons to know which legal system governs their inheritance rights. In
addition, legal pluralism makes it relatively easy for families and communities
to “forum shop” for a legal system that will most easily allow them to deny
disabled persons their inheritance rights. In many states, statutory law
excludes customary inheritance practices from their non-discrimination
clauses, legitimating discriminatory practices. Even in states that do not
create exceptions in their national laws for customary inheritance practices, a
lack of enforcement mechanisms means that communities and families often
ignore state law.
Lawyers and judges themselves may prove an additional structural
barrier when it comes to persons with disabilities. Not only might lawyers and
judges lack knowledge of the applicable laws that protect the inheritance
rights of persons with disabilities at the national and international level, but the
general stigma surrounding disabled persons may also be shared by
members of the legal profession. Disability issues are rarely the focus of legal
training, and there is no reason to anticipate that many lawyers and judges
will have any more insight into the lives of persons with disabilities than
members of the general public unless they are specifically reached and
trained to think differently. Compounding this is the inaccessibility of the court
35
rooms and legal offices themselves. If court rooms or legal offices lack access to
sign language interpreters, it may be impossible for deaf persons to utilise them; if
they are not wheelchair accessible, it may impossible for wheelchair users to enter
them.
Finally, persons with disabilities who live in rural communities are at an even
greater disadvantage than those who live in cities simply because of the distance to
lawyers, judges, and the courts, that would allow them to access the national legal
system, making them even more reliant on the local, customary legal mechanisms
for inheritance.
CONCLUSIONS AND RECOMMENDATIONS
While it can be argued that the new Convention the Rights of Persons with
Disabilities will override more traditional legal systems, and that the laws of all
countries that have ratified the Convention will be aligned with the Convention, this
will not necessarily extend to changes at the individual level. The Convention on
Elimination of All Forms of Discrimination against Women (CEDAW), adopted by the
United Nations General Assembly in 1979 (UN 1979), has been ratified by 187
countries and women still face discrimination in most countries around the world.
While it is of note that inheritance rights of persons with disabilities have
received some mention in the Convention it has received no other attention any
other UN Convention or international treaty to date. As has become more than
36
apparent through this desk review, research into inheritance and disability is
strikingly thin and almost entirely conjectural.
Perhaps the most important finding from this research, then, is the
need to further explore –through field studies, an examination of case law,
and discussions with persons with disabilities themselves – the extent to
which persons with disabilities are being denied their right to inherit through
state, customary, and informal legal practices. The ramification that this
denial of inheritance has on poverty for persons with disabilities at the
individual and intergenerational level, needs to be more fully understood.
More insight into these issues will allow us to better identify where significant
changes can be made that will improve the social and economic standing of
persons with disabilities.
In light of the limited body of evidence currently available, any
recommendations made in this paper must be preliminary. There are,
however, several interventions that, even at this point, can be identified as
likely to improve disabled persons’ access to inheritance, and we offer these
here.
First, there is a need to advocate for changing the law, both statutory
and customary. Those countries that currently exempt inheritance from the
non-discrimination clauses of their statutory laws will need to reform their laws
to no longer include this exemption to conform to the requirements of the UN
Convention on the Rights of Persons with Disabilities. As most people die
37
intestate (Hacker, 2010), reforming statutory law so that disabled persons are
automatically included in the distribution of their family members’ wealth could have
have a profound effect on their inheritance prospects. Further, while the reform of
reform of customary law is likely to prove difficult given its localised nature and the
fact that it is generally uncodified, engagement with local leaders may lead to
improvement in customary inheritance practices.
While changing the law is an important first step, there is no guarantee that
doing so will affect disabled persons’ inheritance rights in practice. Further steps will
need to be taken to ensure that inheritance rights codified in law are actually
guaranteed and followed at the individual and community level. Education and
awareness-raising will thus be an important next step. Disabled persons themselves
will need to be educated so that they are aware of their rights, as well as being
educated about how to access the legal system in order to effectively assert rights
that are being denied to them. Lawyers and judges will also need to be educated
about the new laws so that they can help to effectively implement them. Education
within local communities will also be crucial, as family, community members and
community leaders will need to be made aware of the laws and how they affect their
testamentary freedom. Furthermore, monitoring by human rights organizations and
disabled persons’ organizations will be necessary to ensure that inheritance rights
are being implemented at the community and the national level.
In addition, making the law offices and courts more accessible to disabled
persons is crucial to ensuring that they can effectively assert their claims to
38
inheritance. Providing sign language interpreters and making courtrooms
wheelchair accessible are two examples of how this can be achieved.
Furthermore, ensuring that persons with disabilities living in rural communities
have access to lawyers is key to improving the inheritance rights of those
persons with disabilities who are most vulnerable to having their rights be
denied by family or community members.
While it is clearly important to ensure that disabled persons are not
discriminated against in inheritance, we must recognize the legitimacy of
concerns that some families may hold. For instance, a person with an
intellectual disability might require support to best determine how to manage
money and assets; similarly, a person with a serious mental health problem
might need facilitation in order realistically decide how to spend their
inheritance. If an individual needs that inheritance for medical or psychological
care or support over the course of a lifetime and is unable to make
appropriate decisions, allowing them to have atomistic control over their
inheritance might lead to potentially devastating consequences. Ways in
which disabled persons can still be given equal inheritance rights while taking
into account the fact that some persons with disabilities might require help in
order to manage their inheritance is an issue requiring careful consideration
and discussion within and beyond the disability advocacy community.
Additionally, an important consideration in relation to inheritance and disability
is the unique situation that families face in determining whether and how to
give an inheritance to their disabled children.
39
Finally, disability advocates and DPOs must become involved in and develop
an expertise on inheritance and disability both at the policy and practice levels to
provide advice, guidance, training and advocacy. The ability of persons with
disabilities to inherit is an issue that should be brought to the forefront of the
disability and development agenda if the issue of poverty is to be realistically
addressed.
40
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