A husband dies. There is no will. Within days the family has reached its own conclusion: the homestead belongs to the eldest son, the second wife has no claim because her marriage was never registered at Home Affairs, and the widows will be looked after at the family’s discretion. Those statements are often made in good faith. As a matter of South African law, they are wrong.
Inheritance without a will in a customary-law estate has been governed by statute since 20 September 2010. The Reform of Customary Law of Succession Act 11 of 2009 directs these estates into the Intestate Succession Act 81 of 1987, and it modifies that Act where the deceased was a spouse in more than one customary marriage. The practical consequence is that intestate succession in a customary marriage is calculated rather than negotiated. Every qualifying spouse is counted. So is every qualifying child. The inheritance rights of a second wife do not depend on whether the family regards her as the senior wife.
This article sets out how intestate succession in a customary marriage works: what is divided, in what shares, who counts as a spouse and as a child, and what a surviving customary spouse can do when the proposed distribution is wrong. It assumes the marriage itself is accepted. If it is being disputed, start with our article on a disputed customary marriage after death, because status must be established before shares can be argued about.
Intestate Succession in a Customary Marriage: What the Law Now Requires
Section 2 of the Reform of Customary Law of Succession Act directs the estate of a person who is subject to customary law, and who dies without a will, to devolve under the Intestate Succession Act. The old customary rule of male primogeniture no longer determines who inherits.
The Intestate Succession Act sets the base position. Where the deceased is survived by a spouse and by a descendant, section 1(1)(c) provides that the spouse inherits a child’s share of the intestate estate, or so much of the intestate estate as does not exceed the amount fixed from time to time by the Minister of Justice by notice in the Gazette, whichever is the greater. The descendants inherit the residue, if any. That amount has been fixed at R250 000 by GN R921 in Government Gazette 38238 of 24 November 2014.
The 2009 Act then makes three modifications that matter enormously in a polygynous estate. Section 3(1) provides that any reference in section 1 of the Intestate Succession Act to a spouse who survived the deceased must be construed as including every spouse, and every woman referred to in the categories identified in section 2(2) of the 2009 Act. Section 3(3) changes how the child’s portion is worked out. Section 3(2) deals with the estate that is too small to go round.
That is what makes intestate succession in a customary marriage different from an ordinary intestate estate. A surviving customary spouse is not one of several claimants competing for a single spousal share. Each qualifying spouse enters the calculation in her own right.
The Eldest Son Does Not Automatically Inherit
Male primogeniture is still repeated in families, and in some published content, as though it were living law. It is not the rule that governs inheritance without a will. Since 20 September 2010 the statutory framework has applied to qualifying customary-law intestate estates, and it protects surviving spouses and children irrespective of sex or birth order.
Customary law has not been abolished. Section 211(3) of the Constitution provides that the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.
Customary law has not been abolished. Section 211(3) of the Constitution provides that the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. Customary law continues to govern whether a customary marriage came into existence, how family relationships are identified, and whether a child was accepted into the family in accordance with custom. What it no longer does is decide who takes the estate. A family may be entirely correct about who the head of the household is under custom, and entirely wrong about who inherits the house.
First Separate What Is Not Inherited
The most common error is to ask who inherits before establishing what actually belongs to the deceased estate. The correct order of operations is as follows.
- Establish the matrimonial property regime. In a marriage in community of property, the half share of the joint estate belonging to the survivor is her own. It is not an inheritance, and it must be removed before any succession calculation begins. Our article on whether a customary marriage is in community of property deals with that question in detail.
- Establish and settle the liabilities. What is divided is the net estate, not the gross value of the assets of the deceased.
- Apply the statutory formula to the net intestate estate. All qualifying surviving spouses and descendants are brought into a single calculation. The houses are not treated as separate estates.
- Deal with any maintenance claim separately. A qualifying survivor may have a claim under the Maintenance of Surviving Spouses Act 27 of 1990. That claim is not an inheritance.
Section 2(1) of the Maintenance of Surviving Spouses Act gives the survivor a claim against the estate for the provision of reasonable maintenance needs until death or remarriage, in so far as the survivor is not able to provide for those needs from his or her own means and earnings. Section 3 requires account to be taken of the amount available for distribution to heirs and legatees, the existing and expected means, earning capacity, financial needs and obligations of the survivor, the subsistence of the marriage, the standard of living during the marriage, and the age of the survivor at the death of the deceased. It is a separate claim, and it may succeed or fail on facts that have nothing to do with the intestate shares.
Vermeulen Attorneys assists surviving spouses and heirs in deceased-estates disputes. If you are unsure whether the executor has correctly separated your matrimonial property entitlement from the net estate, obtain advice before the account is confirmed. Contact Vermeulen Attorneys to arrange a consultation.
How the Child’s Portion Calculation Works When There Is More Than One Spouse
Under the unmodified Intestate Succession Act, a child’s portion is calculated by dividing the monetary value of the estate by the number of qualifying children, plus one.
Section 3(3) of the Reform of Customary Law of Succession Act replaces that formula. In intestate succession in a customary marriage, the child’s portion is calculated by dividing the monetary value of the estate by the number of qualifying children of the deceased, plus the number of spouses and women referred to in section 2(2) of that Act. The simplest way to hold the child’s portion calculation in mind is that each surviving customary spouse counts as one additional share.
Each spouse then takes the greater of that child’s portion or R250 000. The descendants take the residue, if any.
Section 3(2) deals with the estate that cannot carry that. Where the intestate estate is not sufficient to provide each surviving spouse with the amount fixed by the Minister, the estate is divided equally between those spouses. In a small estate, that can mean the children receive nothing from the intestate estate at all.
Two Worked Examples in an Estate With Two Wives
The figures below are illustrations only. They assume the matrimonial property position has been dealt with, the debts have been settled, and the marriages and children are not in dispute. Real estates rarely arrive in that condition.
Example one: a net estate of R3 000 000, two wives and three children
The child’s portion is R3 000 000 divided by five, which is R600 000. Each wife takes the greater of R600 000 or R250 000, so each wife takes R600 000. The two wives take R1 200 000 between them. The residue of R1 800 000 is shared by the three children, at R600 000 each.
Example two: a net estate of R400 000, two wives and three children
The preliminary child’s portion is R400 000 divided by five, which is R80 000. Each wife is entitled to the greater of R80 000 or R250 000, and the estate cannot provide R250 000 to each of them. Section 3(2) therefore applies and the estate is divided equally between the two spouses. Each wife receives R200 000. The children receive nothing from that intestate estate.
The second example surprises most families, and it shows why intestate succession in a customary marriage must be worked out on the actual figures rather than assumed. It also shows why a maintenance claim, and the correct identification of estate liabilities, can matter more than the succession formula in a modest estate.
Who Counts as a Child Under the 2009 Act
The word descendant is wider here than a biological or formally adopted child. Section 1(4)(eA) of the Intestate Succession Act, inserted by section 8 of the Reform of Customary Law of Succession Act, provides that a person who falls within the relevant part of the definition of descendant in the 2009 Act is deemed to be a descendant of the deceased, and is deemed not to be a descendant of his or her natural parent or parents. The exception is where the natural parent is also the parent who accepted that person, in accordance with customary law, as his or her own child, or was married to that parent at the time of the acceptance.
In plain terms, a child accepted by the deceased during his or her lifetime, in accordance with customary law, as his or her own child may qualify as a descendant for the purposes of intestate succession in a customary marriage even where there is no biological link and no statutory adoption.
Acceptance is proved by facts, not by one prescribed document. Evidence may include lobolo negotiations, receipts or family correspondence, testimony from relatives and elders, evidence that the deceased publicly recognised and treated the person as a child, and records showing that the child was incorporated into the family. Being raised by the deceased, or using the surname of the deceased, may support the claim. Neither of those facts proves customary acceptance on its own. A child who qualifies and is left out of the account changes the child’s portion calculation for everyone, because the divisor changes.
Which Assets Fall Outside the Estate
Some benefits are dealt with under separate legal regimes and are not simply added to the pool for intestate succession in a customary marriage.
- Retirement fund death benefits. Section 37C(1) of the Pension Funds Act 24 of 1956 provides that a benefit payable by a registered fund on the death of a member does not, subject to the exceptions set out in that section, form part of the assets in the estate of the member. The fund investigates dependants and distributes the benefit under section 37C.
- Life policies and nominated benefits. A policy payable directly to a nominated beneficiary is not an estate asset merely because the deceased paid the premiums. The policy terms and the applicable legislation must be checked in each case, because not every policy falls outside the estate.
- Property described by the family as house or family property. The 2009 Act recognises the concept of a house, but a family description does not decide legal ownership. If the deceased owned the property, or held a legally recognisable interest in it, it may have to be accounted for in the estate.
Customary concepts such as a family home or lineage property can involve collective rights and responsibilities that do not fit neatly into individual title. That is a real complication, and a reason to take advice early rather than to assume the property is untouchable.
What the Executor and the Master’s Office Should Require
An estate involving more than one customary marriage is a proof and classification exercise before it is a distribution exercise.
- Every marriage and every potential heir must be identified. The executor should not assume that the spouse named on the death certificate, or named by one branch of the family, is the only spouse.
- The matrimonial property regime must be established for each marriage. Where a husband in a customary marriage entered into a further customary marriage after the commencement of the Recognition of Customary Marriages Act 120 of 1998, section 7(6) required him to apply to court to approve a written contract regulating the future matrimonial property system of his marriages. That court-approved contract is relevant to any further customary marriage entered into after 15 November 2000.
- All descendants must be identified, including any child accepted by the deceased in accordance with customary law.
- Benefits governed by separate regimes must be identified and treated correctly rather than swept into the estate.
Registration is a separate question from validity. Section 4(9) of the Recognition of Customary Marriages Act states that failure to register a customary marriage does not affect the validity of that marriage, and section 4(8) provides that a certificate of registration constitutes prima facie proof of the existence of the marriage and of the particulars in the certificate. Executor resistance is nevertheless common, and our article on when an executor refuses to recognise a registered customary marriage sets out the practical response.
Deadlines a Surviving Customary Spouse Should Watch
The statutory timetable in intestate succession in a customary marriage moves whether or not the family is ready.
- Fourteen days to report the death. Section 7(1)(a) of the Administration of Estates Act 66 of 1965, as substituted by section 8 of the Reform of Customary Law of Succession Act, requires the surviving spouse, or more than one surviving spouse jointly, to give notice of death to the Master within fourteen days.
- Six months for the account. Section 35(1) requires the executor to submit the liquidation and distribution account to the Master within six months after letters of executorship have been granted, or within such further period as the Master may allow.
- Twenty-one days for inspection. Section 35(4) requires the account, once examined by the Master, to lie open for inspection for not less than twenty-one days. Section 35(5)(a) requires the executor to advertise that period in the Gazette and in one or more newspapers circulating in the relevant district.
- Objection before the inspection period expires. Section 35(7) allows any person interested in the estate to lodge an objection, with the reasons for it, in duplicate with the Master at any time before the expiry of the inspection period. The executor then has fourteen days after receiving a copy to transmit comments to the Master under section 35(8).
- Thirty days to approach the court. Section 35(10) allows a person aggrieved by a direction of the Master, or by a refusal to sustain an objection, to apply by motion to the court within thirty days of that direction or refusal, or within such further period as the court may allow.
Section 35(12) makes the estate distributable once the account has lain open and no objection has been lodged, or an objection has been dealt with and no application has been made to court within the section 35(10) period. Once the estate has been distributed, the practical position becomes considerably harder.
If the advertised inspection period for the account in your family’s estate has already started, obtain advice promptly. Speak to Vermeulen Attorneys about your position before the objection period closes.
What to Do When the Division Is Wrong
Not every disagreement becomes litigation. The usual sequence is to raise the problem with the executor first, in writing, with the reasons and the supporting documents. Many errors are corrected at that stage, especially where a spouse or a child has simply been omitted from the reporting documents.
Where that does not resolve it, and the account has been advertised, the operative remedy is a section 35(7) objection to the Master. Our article on objecting to a liquidation and distribution account explains how that process works.
A dispute about intestate succession in a customary marriage moves into litigation when a genuine dispute of right or of fact arises, or when the decision of the Master itself must be challenged. A contested question about whether a valid customary marriage existed, or about who owns a particular asset, may require separate proceedings with affidavits, witnesses, valuations or expert evidence. Cost and delay increase sharply at that point. An objection to the Master is usually quicker and cheaper than court proceedings, and urgent relief may be appropriate where estate assets are being dissipated. Which route is right depends on the facts, the evidence and the procedural posture of the estate.
Common Mistakes in Customary Intestate Estates
Surviving spouses assume that an unregistered customary marriage is invalid, or fail to disclose every customary marriage because the family regards only one wife as the real wife. A surviving customary spouse who waits for the family to reach agreement often discovers that the account has already been advertised and the inspection period has closed.
The family of the deceased assumes that the eldest son or the family head controls the estate because of customary practice, and removes or retains property before the executor has established ownership, the debts and the matrimonial property position. Dealing with the homestead while the estate is under administration is a serious step, and it is not a substitute for the statutory process.
Executors accept family assertions without proof, omit a spouse or a child, fail to obtain the court-approved section 7(6) contract where one is required, or fail to distinguish estate assets from benefits governed by separate regimes. Any one of those produces a fundamentally incorrect account.
When to Get Attorneys Involved
Advice is worth taking early where the executor has not recorded every marriage, where a child accepted under customary law has been left out, where the account treats the half share of a joint estate as an inheritance, where the wrong formula appears to have been applied, or where a maintenance claim has been ignored. Bring the identity and marriage documents, lobolo records and family witness details, the death certificate, asset and debt records, any section 7(6) contract, the estate file reference and the account if it has been advertised.
The single deadline that most often decides the outcome is the inspection period for the liquidation and distribution account. Once it closes without an objection, the route to correcting the distribution becomes narrower and more expensive.
Vermeulen Attorneys advises surviving spouses, children and executors on deceased-estates disputes, including intestate succession in a customary marriage and objections to a liquidation and distribution account. Arrange a consultation with Vermeulen Attorneys.
Frequently Asked Questions
Does the second wife inherit if the customary marriage was never registered?
Registration and validity are different questions. Section 4(9) of the Recognition of Customary Marriages Act provides that failure to register a customary marriage does not affect the validity of that marriage. Where the marriage is valid, the inheritance rights of a second wife are determined by the statutory formula in the same way as those of any other qualifying spouse. What registration affects is proof. Without a certificate, the existence of the marriage must be established by other evidence, and that is where these matters are usually won or lost.
If there are two wives and four children, how is the estate split?
The child’s portion calculation divides the net intestate estate by six, being four children plus two spouses. Each wife takes the greater of that figure or R250 000, and the children share the residue. If the estate is too small to give each wife R250 000, section 3(2) of the Reform of Customary Law of Succession Act applies and the estate is divided equally between the two wives. The actual outcome depends on the property regime, the estate value and the debts.
How does intestate succession in a customary marriage treat a child raised by the deceased?
A person accepted by the deceased during his or her lifetime, in accordance with customary law, as his or her own child may qualify as a descendant under the extended definition. Acceptance is a factual question and may need to be proved through lobolo records, family testimony and evidence that the deceased publicly treated the person as a child. Being raised in the household, on its own, does not establish customary acceptance.
Can the family of the deceased take the family home?
Not while the estate is under administration. The executor must establish who owned the property, or what legally recognisable interest the deceased held in it, before anything is distributed. Describing an asset as house property or family property does not remove it from the estate. Taking possession of estate property before the account is confirmed creates its own legal exposure.
Is a maintenance claim the same as an inheritance?
No. A claim under the Maintenance of Surviving Spouses Act is a claim against the estate for reasonable maintenance needs, assessed on the factors in section 3 of that Act, including the means and earnings of the survivor. An inheritance is a share of the net intestate estate under the statutory formula. A survivor may have both, one or neither, depending on the facts.
What is the deadline for objecting to the liquidation and distribution account?
The account lies open for inspection for not less than twenty-one days under section 35(4) of the Administration of Estates Act, and the executor must advertise that period. Section 35(7) allows an interested person to lodge an objection with the Master, with reasons, at any time before that period expires. If the Master refuses to sustain the objection or gives an adverse direction, section 35(10) allows an application to court by motion within thirty days, or within such further period as the court may allow.
Does customary law still apply to the estate at all?
Yes, in its proper place. Section 211(3) of the Constitution requires the courts to apply customary law when that law is applicable, subject to the Constitution and any legislation dealing specifically with customary law. Customary law remains central to whether a marriage came into existence and whether a child was accepted into the family. Inheritance without a will in a qualifying estate is what the 2009 Act moved into the statutory framework, and a surviving customary spouse should approach the division on that basis.
