What Happens to Your Spouse and Children When You Die? A Plain-English Guide to Inheritance Rights in South Africa

By Roy Bregman, admitted attorney since 1974 · Bregman Moodley Attorneys Inc

The loss of a spouse or parent is among the most difficult experiences a person can face. In the immediate aftermath, the last thing any family wants to think about is legal processes. However, Inheritance Rights play a crucial role in protecting your spouse and children, and in determining what happens to your estate when you die.

Understanding Inheritance Rights early ensures that families are not left with uncertainty or unnecessary disputes during an already painful time. This article explains those rights in clear, plain-English terms so you know what to expect and how your estate is handled under the law.

If There Is a Valid Will: Testate Succession

Where the deceased left a valid will, the estate is distributed according to the will’s instructions — subject to limited statutory protections that form part of Inheritance Rights for surviving spouses and dependent children. Freedom of testation (the right to leave your estate to whomever you choose) is a cornerstone of South African succession law. A court will uphold a valid will unless its provisions are unconstitutional or contrary to public policy.

However, despite this freedom, Inheritance Rights also recognise that two important statutory claims can override what the will says:

• The Maintenance of Surviving Spouses Act 27 of 1990 gives a surviving spouse the right to claim reasonable maintenance from the deceased’s estate if they cannot support themselves from their own assets. This claim ranks ahead of beneficiaries’ inheritances.
• The right of minor children to claim maintenance from the estate is also protected by law — a parent cannot disinherit minor children of their maintenance entitlement, even if the will purports to do so.

If There Is No Valid Will: Intestate Succession

When a person dies without a valid will, the Intestate Succession Act 81 of 1987 determines who inherits. The formula is applied in this order:

Survived by Spouse and Children

The surviving spouse receives either R250,000 or one “child’s share” — whichever is greater. A child’s share is calculated by dividing the net estate by the number of surviving children plus one (the spouse). Children share the remaining estate equally.

Example: Estate of R1,500,000; survivor is wife plus two children. Child’s share = R1,500,000 ÷ 3 = R500,000. Wife receives R500,000 (greater than R250,000). Each child receives R500,000.

Survived by Spouse Only (No Children)

The surviving spouse inherits the entire estate.

Survived by Children Only (No Spouse)

Children inherit the entire estate equally, regardless of whether they are from a current or previous relationship.

Survived by Neither Spouse Nor Children

The estate passes to the deceased’s parents (equally, or to the survivor if one has already died). If no parents survive, the estate is split between the maternal and paternal families — half to each side. If no family can be traced, the estate devolves to the State.

Marriage and Matrimonial Property: A Critical Factor

How you are married affects your estate profoundly:

• Married in community of property: You and your spouse each own half of the joint estate. When one spouse dies, only their half is administered as the deceased estate. The surviving spouse retains their own half — but this must be correctly identified and separated during estate administration.
• Married out of community of property with accrual: At death, the accrual claim (the growth in the surviving spouse’s estate during the marriage) is calculated and may reduce what flows to heirs.
• Married out of community of property without accrual: Each spouse’s estate is entirely separate. The deceased’s estate is administered on its own.

Rights of Unmarried Partners

South African intestate succession law does not automatically recognise unmarried life partners as heirs. Regardless of how long you have lived together, without a valid will that names your partner as a beneficiary, they have no automatic right to inherit from your estate. The Constitutional Court’s ruling in Bwanya v Master of the High Court (2022) extended some protection to surviving partners of opposite-sex unions — but this remains complex, contested territory. The only reliable protection is a properly drafted will.

Rights of Adopted and Biological Children

Legally adopted children have exactly the same inheritance rights as biological children — from both their adoptive parents and the estate of any predeceased biological relative of those adoptive parents. After adoption, the child loses inheritance rights from their biological parents (unless named in a will). A stepchild who has not been legally adopted has no automatic inheritance rights under intestate succession.

What Should You Do?

If you are a surviving family member, your first step is to contact an experienced estate attorney. The estate must be reported to the Master of the High Court within 14 days of the date of death. Do not wait — and do not attempt to distribute assets or close bank accounts without first consulting a professional.

If you are planning ahead, review your will now against the circumstances described in this article. Ask yourself: does my will accurately reflect how I want my spouse and children to be provided for? If there is any doubt, speak to us.