How a surviving spouse inherits from a deceased estate

How a surviving spouse inherits from a deceased estate

Has your spouse recently passed away?

How a surviving spouse inherits from a deceased estate

There are various ways in which people can marry each other. The way in which a person is married has a significant impact on how their estate is administered during their lifetime, but especially upon their demise. This article discusses some of the most common ways people marry and the effect of the marriage upon the estate of one or either spouse upon the demise of a spouse and how a surviving spouse inherits from a deceased estate.

  • In terms of the Matrimonial Property Act two people who marry each other either under the Marriage Act, or the Civil Union Act have two choices as to their matrimonial property arrangements. First, the default position is being married in community of property which implies that there is a joint estate between the marital couple. Second, if the marital couple decide to enter into an Antenuptial Contract (marriage contract) the marital estate can be proportioned in any manner they agree to. In most cases, couples who choose to go the Antenuptial Contract route, decide to get married out of community of property. Out of community of property means that the estate of either spouse is retained by themselves for their sole benefit and responsibility.
  • If the marital couple subscribes to a particular religion that regulates marriages, South African law to a certain extent recognizes these marriages as being one in community of property (notwithstanding that the requirements of the Marriages Act has not been complied with). For example – in the case of a deceased spouse – a surviving spouse in a Muslim marriage is acknowledged to benefit from the deceased estate of her husband as if they were married in community of property.
  • The Recognition of Customary Marriages Act further recognizes marriages that have been concluded in conformity with traditional custom. Provided that there is only one spouse, these marriages are also deemed in community of property.

The Intestate Succession Act states how a deceased estate must be dealt with where no Will exists. If there was marriage in community of property (for example in the list above) the surviving spouse will be entitled to 50% of the estate and either a child’s portion or R250 000.00, whichever is the greater amount. If they were married out of community of property – if there was an Antenuptial Contract – there is no 50% share in the joint estate, only the deceased spouse’s estate is to be distributed per the Intestate Succession Act (if there is no Wil) or in accordance of the Will (if one exists) of the deceased.

It is a traumatic and burdensome time when a spouse passes away. You may not know what to do and land up frustrated, under pressure to finalise the financial affairs of your deceased spouse. Siyatec Executors can assist you as the surviving spouse with obtaining Letters of Executorship to deal with the estate of your spouse.


  • Act 88 of 1984.
  • Act 25 of 1961, for marriages between a man and woman.
  • Act 17 of 2006, for same-sex marriages.
  • At the time of writing the Muslim Marriages Bill of 2010 was still under consideration. However, there has been considerable judicial pressure to finalize legislation regulating Muslim marriages. See for example Women’s Legal Centre Trust v The President of the Republic of South Africa and Others [2018] (6) SA 598 (WCC).
  • Act 120 of 1998.
  • Act 81 of 1987.

Author: Wafiq Davids (B SocSci, LL.B.)
Attorney, Notary, Conveyancer and Legal Consultant at Siyatec Executors

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