THE LAW CONCERNING INHERITANCE BY A SPOUSE, AND HER CHILDREN WHEN ONE SPOUSE DIES WITHOUT A VALID WILL, BUT THE COUPLE HAD A VALID CIVIL MARRIAGE.

Author: Promise Njagu

Introduction

When a person dies without having prepared a will or having left a will, they are said to have died intestate. This means that the division of his/her property is determined by the law (statutory law and common law). The people (heirs) who stand to benefit from the estate of a deceased are said to be inheriting ab intestateor simply inheriting the property of someone who died without having left a valid will.

The parties who inherit from a deceased estate only benefit from the free residue, meaning those who inherit only inherit after the creditors have been paid and the expenses incurred in the administration of the estate have been subtracted from the estate.

In the absence of a written document stating differently, all marriages concluded after 1929 are considered to be out of community of property per the Married Persons Property Act (5:12). This means that most marriages are out of community of property and therefore this writ is inclined to favour this type of marriage setup.

The statutory law that applies to estates distribution is different depending on whether the person was married customarily or if they had a civil marriage. The Deceased Estates Succession Act (Chapter 6:02) applies if the parties were married civilly, while those who were married customarily will have the surviving spouse being governed by the Administration of Estates Act [Chapter 6:01]. For this article, we deal specifically with an issue where the parties had a valid civil marriage, which means the applicable Act in this instance would be the Deceased Estates Succession Act (Chapter 6:02).

PERTINENT QUESTIONS

What does the spouse of the deceased inherit ab intestato?

This is regulated by sections 3 and 3A of the Deceased Estate Succession Act.

As per section 3A:  A spouse is entitled to the house (or other domestic premises) and household goods and effects that the surviving spouse used immediately before the death of the deceased spouse. This means a wife/husband is entitled to inherit the house and household goods that they were using as couple at their primary house prior to the death of the husband.

Section 3(b) (ii) of the same Act states that; the surviving spouse is entitled to a child’s share of the property that remains after a) the expenses relating to the distribution of the estate have been subtracted, and b) subtracting the house she was using as her primary homestead and household goods prior to the death of the husband. The child’s share is calculated by adding the number of children sired by the deceased and his or her surviving spouse plus the legally recognised surviving spouse then dividing the property to each as a fraction of the total number. For example, if the deceased husband sired 5 children and there is one legally recognised wife, the wife and the children each gets 1/6 of whatever property is in the free residue estate.

Does a child born out of wedlock benefit from a deceased estate?

The simple answer is yes:

The Constitution in terms of section 56(3) directs that a child should not be put in a disadvantaged position due to being born out of wedlock.

The case that put all this to rest is the case of Edith Mayiwa v Master of the High Court and Anor , the court decided that it would be in violation of constitutional right to protection of the law, freedom from discrimination and to privacy to exclude children born out of wedlock from inheriting from their father’s estate.

According to section 3 of the Deceased Estates Succession Act, a descendant of the deceased has competing rights to inherit ab intestate with the spouse of the deceased per child’s share. In Elsie Bhila v Master of High Court and Anor it was stated:

“A descendant by no means excludes a child by virtue of status of marriage.  It is my considered view that a child whether born out or in wedlock is one’s child and thus descendent.”

Based on this premise, the court decided that the child born out of wedlock is a child who stands to benefit from the inheritance ab intestato.

Do the relatives of the deceased benefit from the deceased estate when there is a civil marriage in place?

According to section 3(c) (i) and (ii), the relatives of a deceased husband only benefit from the estate of the deceased (i) if there are no surviving children of the deceased (ii) the wife has been given her sole property, (iii) the wife has also been awarded the household goods, and (iv) has been awarded half the estate of the remaining property.

What happens if the property is not divisible how will it be shared?

Per section 5 of the Deceased Estate Succession Act if due to the sharing of the estate, heirs get undivided shares in a property, they can i) agree on how they are to divide the property in question and it shall be binding on the executor. In the alternative ii) one of the persons who is to benefit from the undivided shares might direct (in writing) that the property be sold and the proceeds be shared. Such direction will be binding on the other heirs and the executor.

Conclusion

The post-colonial era has led to the use of the law to advance equality and justice not only in society as a whole only, but among the previously marginalised groups as well. Women and children are chief among the beneficiaries. The protection accorded to children, even those born out of wedlock is to be celebrated as a win for all in the “purposive” couching of the law.