After conducting research studies throughout courts in five regions of Kosovo, it was found that instead of courts initiating the inheritance process, heirs of the descendants (mostly males) are initiating the inheritance process, and potentially to the exclusion of women.

(‘Research and Monitoring the Law on Gender Equality’, Law Association NORMA, 2011)

Kosovo, as a newly created country, is characterized by a legal framework that is full of language that assures gender equality. The Constitution, three laws, and one international treaty all guarantee gender equality in all aspects of life (political, social, economic, etc). With such a strong and progressive legal framework, the road to achieving equal inheritance rights for women would seem to be attainable. However, the rule of law in Kosovo continues to face some serious obstacles that allow for discriminatory behaviors, rooted in customary practices, to still occur, and negatively affect women. While the laws affecting inheritance are thorough and extensive, the flaws within the legal system are a cause for concern.

Kosovo’s Constitution, Law on Gender Equality, Family Law in Kosovo, and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), all provide frameworks which call for an equal playing field between the genders in terms of inheritance: “No one shall be arbitrarily deprived of property,” states Article 46 of the Constitution of Kosovo; “In particular [States] shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals,” states Article 15.2 of the CEDAW; “Children of both genders are entitled to an equal share of the inherited property,” states Article 16.12 of the Law on Gender Equality; and, “The spouses shall carry out the administration and disposition of the joint matrimonial property together and in agreement,” states Article 49 of the Family Law in Kosovo.

However, the law with the most thorough explanation of inheritance, using straightforward language, is the Kosovo Law on Inheritance. With its 149 articles, this law regulates all areas of inheritance. Article 1.4 of the Law on Inheritance is fundamental. “For the purposes of this Law, words in the masculine case shall also include the feminine case and vice versa, without discrimination,” it states. This clause explicitly illustrates that the entire language of the law is based on gender equality and as such it leaves no room for loopholes, confusion, biases, or stereotypes. Article 3.1 underlines the point even further: “All physical persons under the same conditions are equal in inheritance.”

In Kosovar culture, inheritance is usually discussed and divided outside the court system, typically between the men, without the input of women. However Article 8 of the Law on Inheritance states that this should not be the case: “Inheritance shall be based on legal or testamentary succession.” Either a person needs to leave a will, or the court will decide how the inheritance should be divided. If this article — and the rest of the law — was to be fully implemented, a woman’s access to her inheritance would not be so threatened.

It is important to note that, even in cases where a decedent (a person who has died) has left a will, the whole process of the division of inheritance should still be carried out through the court system. In this way, the process has legitimacy and should be thoroughly based on the legal framework. The will must be notarized (made legal by a notary), signed by the testator (the person making the will), or have witnesses, in order to be valid. The decedent can still potentially exclude family members through a will, but only under certain conditions, none of which are based on gender. Therefore even in cases where a will is left by the father or husband, if women are excluded, it has to be for reasons other than their female status.

In situations where no will has been left or where a will is void there is an inheritance rank, found in Article 12, that the family should adhere to. The decedent’s children and spouse are first in line to the inheritance. If the decedent does not have any children, the inheritance will be split equally between the spouse and the decedent’s parents. If the spouse has also died, the decedent’s parents will inherit all of the property equally. Similarly, if both parents are dead then the spouse inherits everything. Siblings, grandparents, and their descendants follow, respectively.

It is imperative to understand that the Law on Inheritance repeatedly mentions that the inheritors are to receive equal shares of the inheritance. However, this is not borne out in practice. One of many cases exemplifying this injustice, is that of Shyhrete Berisha. Not only did Shyhrete lose her entire family (her husband and four children) in the war, but after the war, she also lost the home she once lived in. Her home was not lost during the destruction of war, but by her husband’s family refusing to let her in. “What do you need the house for? Everyone’s been killed. It’s our house now,” was the response from her mother-in-law when Shyhrete tried to come back home. Legally, as the wife of the deceased, Shyhrete is entitled to a share of the Berisha property.

Stigmas and hypocrisy still run strong. Although traditional customs expect a woman’s place to be inside the home, in situations like Shyhrete’s, why is the woman being forced to leave the home which she was previously expected to never leave? Is it still true that a woman’s home is never her own? Can’t a woman have a place called home without the presence of her husband or father?

Despite the many existing legal instruments which guarantee women the equal right to inherit property, the implementation of such legal instruments is flawed and lacks the proper attention of the relevant institutions; e.g. the courts. Hence the gender equality guarantee in terms of inheritance can only be seen on paper. One of the main impediments keeping these laws from being properly implemented is the weak system of the rule of law and the functioning of its institutions.

A report by the Lawyer’s Association NORMA, ‘Research and Monitoring the Law on Gender Equality,’ identifies that women have cause for concern from the very beginning of the inheritance process. When a person dies, it is the court’s ‘ex officio’ legal obligation to initiate the inheritance process, not the heir’s. However NORMA’s research found that this is not happening. Instead, it is heirs of the decedents (mostly males) who are initiating the inheritance process, and potentially to the exclusion of women.

In 2013, we interviewed Ariana Qosaj-Mustafa, lawyer and senior researcher at the Kosovo Institute for Policy Research and Development, on this topic. She explained that due to the courts’ laziness or lack of knowledge, they neglect some of the required legal procedures. As a result, the men of the family are usually the ones who go to court for the dissolution of property. And at times, some of these males do not even mention to the courts that they have sisters, or that there are other females within their family. Ms. Qosaj-Mustafa suggested that it is not out of the norm for the court to fail to double-check a family’s background to see if there are female heirs; once this duty has been neglected, the inheritance is given to the men without the knowledge of the female family members.

There is one more aspect pertaining to Kosovar women inheriting that is troublesome: the renouncement of inheritance. The Law on Inheritance states that heirs can renounce their inheritance, but are required to go in front of the court to do so. This provision does not apply in the case of coercion. However, it is particularly problematic that there is the possibility given by law, for a woman to give up her right to inherit — to the benefit of her brother or other males in the close family — by declaring her renouncement in the court. Traditional and social customs already give women the notion that they should not inherit. According to our research in 2013 — the results of which are broadly reflected in the ‘Women’s property inheritance rights in Kosovo’ report by Kosovar Center for Gender Studies — 60% of women stated that family pressure keeps them from requesting their share of inheritance and if they were to ask for their inheritance, a family member would prevent them from claiming it. By allowing a renouncement of inheritance, the law therefore makes it easier for a woman to give up her right to inherit, in order to avoid family conflict. And the court has little way of determining whether such a renouncement has been made under subtle family coercion.

It is clear that the rule of law requires serious improvements to ensure that women’s equal inheritance rights are exercised in practice. However, an engrained traditional mentality also remains a strong obstacle to overcome.

“They can fill up as many surveys as they want. The property is all under my name, and I am the only one to decide who gets what; and let me tell you what, for now and one hundred more years these girls will never inherit anything from me.” (A statement by a father during one of our surveys in 2013.) K

This article is the second in our series on women’s inheritance rights. It was adapted from parts of Donita Macula-Krasniqi and Paula Crawford’s bachelor’s degree theses on Women’s Inheritance Rights in Kosovo (American University in Kosovo and Arizona State University.)