LIKE a robber, death within families always strikes when one least expects it. But it is unfortunately a painful reality we all face at some point.
It is always a good thing to plan for such eventualities ahead of time, but when they strike before one can draw up a will - a document that dictates what must be done with the deceased's estate - it always leaves the dependents in a quandary.
A Fin24 user writes:
"I have been living with my husband in a customary marriage for 10 years. He is no longer well, health-wise, and I doubt if he has a will - in fact, he is not interested in it as he still believes he will be well. His family is overbearing and I think they are looking at inheriting whatever is left after he departs.
"We have two school-going children fathered by him and all assets, worth more than R1m, are registered in his name. Will I have anything to fall back on legally if anything happens to him, or should I let his family take it all?"
The reader also states that lobola was paid for her 10 years ago and her family holds an agreement signed by both families when the exchange of cows took place. As far as she knows, her husband has no children outside their matrimonial home.
In such complex situations, the spouse often faces problems with the deceased's family – particularly siblings who feel a sense of entitlement to the assets of their departed family member. Dependents may be disregarded, which could leave them destitute.
However, the spouse does have legal recourse against such scavenging.
If the deceased dies without a will, the law of intestacy will determine who the beneficiaries of the deceased will be, says Johann Jacobs, national practice head: trusts and estates at DLA Cliffe Dekker Hofmeyr.
The general outcome will be that the estate will be divided into as many equal parts as there are children and spouses, he says.
"Based on the given bare facts, the development of the law of intestacy and the Maintenance for Surviving Spouse Act in terms of the constitution safeguard the benefits available to a spouse, and in terms of these acts that have been extended to customary law marriages, she will inherit with the children.
"However, if it transpires that the wife and children are not beneficiaries in terms of a current valid will or the benefits due in terms thereof, or from the law of intestacy are inadequate, both the children and wife will have a potential claim against the estate for maintenance in terms of the common law or Maintenance of Surviving Spouse Act respectively to the degree of their dependence."
Intestate Succession Act
The act provides for the following beneficiaries, in order of preference:
- The spouse of the deceased;
- The descendants of the deceased;
- The parents of the deceased (only if the deceased died without a surviving spouse or descendants) and the siblings of the deceased (only if one or both parents are predeceased).
The Intestate Succession Act accommodates cases where the deceased was a husband in a polygamous customary union. When the deceased leaves only spouses and no descendants, the wives will inherit the estate in equal shares.
The act instructs that when the deceased leaves spouses and descendants, the spouses and descendants will inherit the estate in equal shares but each wife shall inherit at least R125 000.
Also, if the estate is not large enough to allow each wife to inherit the R125 000, the spouses will inherit the estate in equal shares while the descendants will not receive anything.
The Maintenance of Surviving Spouses Act 27 Of 1990
The act provides the surviving spouse in certain circumstances with a claim for maintenance against the estate of the deceased spouse, and also provides for incidental matters.
If a marriage is dissolved by death after the commencement of this act, the survivor shall have a claim against the estate of the deceased spouse for the provision of reasonable maintenance needs until death or remarriage, in so far as he/she is not able to provide for this from his/her own means and earnings.
Jacobs says that in the above-stated case, the marriage does not have to be registered at the time. A customary marriage usually takes place without a civil marriage officer.
"It is a question of whether a valid customary marriage took place, which appears to have been the case. In the circumstances she will be regarded as a spouse and survivor."