When a person dies without a valid will, the rules of intestate succession in South Africa determine who inherits the deceased estate. Where the deceased was married under customary law to more than one wife and also leaves children, the calculation can be more complicated than many families expect.
A common assumption is that the eldest son inherits everything, that the first wife receives the whole estate, or that later customary wives have weaker inheritance rights. That is not how intestate succession in South Africa currently operates in an estate governed by the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009.
The applicable legislation works together with the Intestate Succession Act 81 of 1987 to determine which surviving spouses and descendants inherit, and how their respective shares must be calculated.
Before the arithmetic begins, however, the executor must establish who the recognised spouses and descendants are and what property actually forms part of the deceased estate.
If an estate is already being administered and you are concerned that a spouse, child or asset has been omitted, contact Vermeulen Attorneys for advice before distribution takes place.
How Intestate Succession in South Africa Applies to Customary Marriages
The statutory framework for intestate succession in South Africa changed substantially after the Constitutional Court’s decision in Bhe and Others v Khayelitsha Magistrate and Others.
The Constitutional Court held that the rule of male primogeniture, as it applied to the customary-law inheritance of property, was constitutionally invalid to the extent that it excluded or hindered women and extra-marital children from inheriting.
Parliament subsequently enacted the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009.
The practical result is that intestate succession in South Africa should not be approached on the assumption that the eldest son, first wife or another person identified according to family hierarchy automatically inherits the estate.
What Law Determines Who Inherits?
Section 2(1) of the Reform of Customary Law of Succession Act provides, broadly, that where a person subject to customary law dies without a will governing the relevant estate or portion of the estate, the property devolves according to the law of intestate succession regulated by the Intestate Succession Act, subject to the provisions of the Reform Act.
This makes the Reform Act central to intestate succession in South Africa where the deceased leaves more than one qualifying customary spouse.
The legislation modifies the ordinary Intestate Succession Act calculation so that multiple surviving spouses can be properly accommodated.
Where the deceased is survived by qualifying spouses and descendants, each qualifying spouse forms part of the calculation of the child’s portion.
Who Counts as a Surviving Spouse?
A surviving spouse includes a spouse in a customary marriage recognised by South African law. Where the deceased had two or more valid customary marriages, the existence of an earlier marriage does not by itself mean that only the first spouse may inherit.
This is an important distinction in intestate succession in South Africa. The question is whether the person qualifies as a surviving spouse under the applicable law, not whether the family regards one wife as the “main” wife.
If the existence or validity of a customary marriage is disputed, that issue may have to be resolved before the inheritance calculation can be completed. Registration is important evidence, but non-registration does not by itself establish that no valid customary marriage exists.
Our separate article on proving you are the surviving spouse of a customary marriage deals with that issue in more detail.
If an executor refuses to recognise a customary marriage, see our article dealing with when an executor refuses to recognise a customary marriage.
Who Counts as a Descendant?
The Reform Act gives “descendant” an extended meaning for purposes of intestate succession in South Africa.
In addition to descendants recognised under the Intestate Succession Act, the definition includes a person whom the deceased accepted as his or her own child in accordance with customary law during the deceased’s lifetime.
The Reform Act also contains specific provisions relating to certain customary-law relationships involving women in unions established for the purpose of providing children for a particular house.
These provisions are technical and fact-sensitive. Families and executors should therefore avoid deciding who qualifies as an heir simply according to everyday descriptions of who was regarded as a wife or child.
How the Child’s Portion Is Calculated
The child’s portion is one of the most important concepts when dealing with intestate succession in South Africa where the deceased leaves surviving spouses and descendants.
Under section 3(3) of the Reform Act, the monetary value of the relevant intestate estate is divided by a number made up of the qualifying descendants and surviving spouses who must be taken into account under the legislation.
Each qualifying surviving spouse receives the greater of the child’s portion or the amount fixed by the Minister for purposes of the Intestate Succession Act.
The current Ministerial amount is R250 000.
Worked Example: Two Wives and Four Children
Consider how intestate succession in South Africa would operate where the net intestate estate is R2 400 000 and the deceased leaves two qualifying customary wives and four qualifying children.
There are six relevant persons for purposes of the calculation:
- two surviving wives; and
- four children.
The child’s portion is therefore calculated as follows:
R2 400 000 ÷ 6 = R400 000.
The child’s portion is R400 000.
Each surviving spouse receives the greater of R250 000 or the child’s portion. Because R400 000 is greater than R250 000, each wife receives R400 000.
The two wives collectively receive:
R400 000 × 2 = R800 000.
The amount remaining for the descendants is:
R2 400 000 − R800 000 = R1 600 000.
The four children divide that amount equally:
R1 600 000 ÷ 4 = R400 000 per child.
On the assumptions used in this example, the distribution is:
- Wife 1: R400 000;
- Wife 2: R400 000;
- Child 1: R400 000;
- Child 2: R400 000;
- Child 3: R400 000; and
- Child 4: R400 000.
This example demonstrates why intestate succession in South Africa should not be described simply as the wives dividing one spouse’s share. Each qualifying surviving spouse is taken into account when the child’s portion is calculated.
First Determine What Property Actually Falls Into the Estate
The inheritance calculation can only take place once the executor has established the value of the net intestate estate.
This is significant because the matrimonial property consequences of the deceased’s customary marriage may first determine what property belongs to the surviving spouse and what property falls into the deceased estate.
The rules of intestate succession in South Africa divide the property that is available for succession. They do not replace the separate enquiry into matrimonial property rights.
For more information on that issue, see our article explaining whether a customary marriage is in community of property.
What Happens If the Estate Cannot Give Every Wife R250 000?
The Reform Act contains a specific rule for intestate succession in South Africa where there is more than one surviving spouse and the estate is too small to give every qualifying spouse the Ministerial amount.
Section 3(2) modifies the ordinary Intestate Succession Act position. Where the relevant intestate estate is insufficient to provide each qualifying spouse with that amount, the estate is divided equally between the qualifying spouses contemplated in the provision.
For example, where the available intestate estate is R400 000 and there are two qualifying surviving spouses, it is impossible to give each spouse R250 000. The special multiple-spouse provision must therefore be considered.
The value of the estate and the number of qualifying spouses must consequently be established before anyone is told what they will inherit.
What Happens to the Family Home?
A wife does not necessarily inherit the house she occupies simply because she and her children have lived there for many years.
The treatment of immovable property in intestate succession in South Africa can require several legal questions to be answered before the asset is distributed.
Section 4 of the Reform Act recognises property allotted or accruing to a woman or her house under customary law. It should not, however, be reduced to a rule that every wife automatically receives the house occupied by her household.
The executor may need to establish:
- how the property was acquired;
- whether it was allotted or accrued to a particular woman or house under customary law;
- who holds registered title;
- the applicable matrimonial property regime;
- whether another spouse has an existing proprietary interest; and
- whether the property forms part of the deceased estate.
A title deed can be important evidence, but it does not necessarily determine every customary-law or matrimonial-property issue.
Families should also avoid self-help such as changing locks, removing estate assets or trying to evict another household without proper legal process.
Pension Death Benefits Are Not Distributed in the Same Way
A pension or provident-fund death benefit governed by section 37C of the Pension Funds Act is different from property distributed through intestate succession in South Africa.
A section 37C death benefit is ordinarily dealt with under a separate statutory process involving the pension fund and its investigation of potential dependants and nominees. It should therefore not simply be added to the deceased estate and divided by the executor under the intestate-succession formula.
Read our separate article explaining how a section 37C death benefit is allocated by the fund.
How the Estate Administration Process Works
The Administration of Estates Act 66 of 1965 regulates the administration of a deceased estate under the supervision of the Master of the High Court.
A death notice is ordinarily required within 14 days in the circumstances contemplated by the Act.
Once authorised, the executor identifies the deceased’s assets and liabilities, deals with creditor claims, establishes what property belongs in the estate and identifies the persons who may inherit.
The section 29 notice gives creditors a period within which to lodge their claims. The specified period may not be less than 30 days or more than three months.
The executor must ordinarily lodge the liquidation and distribution account within six months after letters of executorship have been issued, unless the Master allows further time.
The administration process is therefore closely connected to intestate succession in South Africa, because the L&D account records how the executor proposes to distribute the net estate among the heirs.
Check the Liquidation and Distribution Account Carefully
Once examined by the Master, the L&D account must ordinarily lie open for inspection for at least 21 days.
A person interested in the estate may lodge an objection with the Master before the inspection period expires.
In an estate involving intestate succession in South Africa and multiple customary spouses, possible errors may include:
- omitting a surviving spouse;
- using the wrong number of spouses when calculating the child’s portion;
- incorrectly excluding or including a descendant;
- treating an asset as belonging entirely to the deceased when another spouse has a proprietary interest;
- incorrectly dealing with house property; or
- applying the statutory calculation incorrectly.
If the Master refuses to sustain an objection or gives an adverse direction, section 35(10) of the Administration of Estates Act provides for an application to court within 30 days after the Master’s direction or refusal, or within such further period as the Court may allow.
Our separate guide explains the process for objecting to a liquidation and distribution account.
If the account has already been advertised and you believe the proposed distribution is incorrect, contact Vermeulen Attorneys before the inspection period expires.
When Attorneys Should Become Involved
Not every dispute about intestate succession in South Africa requires immediate litigation. Some disputes can be addressed by placing the correct information before the executor or by lodging an objection with the Master.
Legal intervention may become more urgent where an estate asset is about to be transferred or sold, estate property is being dissipated, an executor intends distributing the estate despite a material dispute, or a surviving spouse faces immediate prejudice relating to a family home.
Vermeulen Attorneys assists clients with deceased estates litigation, including disputes concerning heirs, executors, estate assets and liquidation and distribution accounts.
Contact us if a customary estate has become disputed or if you need advice on the proposed distribution.
Documents to Gather
Where advice is required concerning intestate succession in South Africa, the useful documents will depend on the particular dispute. They may include:
- the deceased’s death certificate and identity details;
- the estate reference number;
- the surviving spouse’s identity document;
- customary-marriage registration certificates;
- other evidence relevant to the existence of a disputed customary marriage;
- children’s birth certificates;
- details of the deceased’s other customary marriages;
- title deeds and information concerning immovable property;
- vehicle, banking and business records;
- any relevant antenuptial contract or court order;
- correspondence from the executor or Master;
- the estate inventory;
- the L&D account; and
- the notice stating when the account lies open for inspection.
Frequently Asked Questions About Intestate Succession in South Africa
Does the first customary wife inherit more than the second wife?
Not merely because she is the first wife. Under the rules of intestate succession in South Africa, each qualifying surviving spouse must be dealt with according to the applicable statutory framework. Separate property rights associated with a particular marriage or house may, however, need to be determined before the inheritance calculation is performed.
Does the eldest son inherit everything when there is no will?
No general rule of intestate succession in South Africa gives the eldest son the entire estate simply because he is the eldest male descendant. The male-primogeniture rule addressed in Bhe was declared constitutionally invalid to the extent set out by the Constitutional Court.
Can an unregistered customary wife inherit?
Potentially, yes. Non-registration does not by itself establish that a valid customary marriage did not exist. Where spouse status is disputed, the marriage may have to be proved before the rules of intestate succession in South Africa can be applied correctly.
How much does each wife inherit if there is no will?
There is no fixed answer applicable to every estate. The child’s portion, the Ministerial amount, the net value of the estate and the number of qualifying spouses and descendants all affect the calculation.
Do multiple wives divide R250 000 between them?
That is not the ordinary statutory calculation. Each qualifying spouse is taken into account under the multiple-spouse framework governing intestate succession in South Africa. A special rule applies if the estate is too small to provide each qualifying spouse with the Ministerial amount.
Does a wife automatically inherit the house she occupies?
No. Occupation alone does not determine ownership or inheritance. The title, matrimonial property regime, customary-law rights and the manner in which the property was acquired or allotted may all be relevant.
Does a pension death benefit form part of the estate?
A benefit governed by section 37C of the Pension Funds Act is ordinarily dealt with separately and is not simply distributed by the executor according to the rules of intestate succession in South Africa.
What should I do if the executor has excluded me?
Obtain the estate documents and L&D account as soon as possible. If the account is already lying open for inspection, the objection period is especially important. The appropriate next step depends on whether the dispute concerns spouse status, descendant status, ownership of an asset or the inheritance calculation itself.
Get Advice Before the Estate Is Distributed
Intestate succession in South Africa can become legally and practically difficult where a deceased person leaves several customary spouses, children across different households and valuable family property.
The executor must first determine who qualifies as a spouse or descendant, establish what property actually forms part of the estate and then apply the statutory inheritance calculation correctly.
If a surviving spouse has been excluded, the child’s portion appears to have been calculated incorrectly, or an L&D account does not properly reflect the family structure or estate assets, legal advice should be obtained before distribution takes place.
Contact Vermeulen Attorneys to arrange a consultation regarding intestate succession, a disputed customary estate or an objection to a liquidation and distribution account.
