Dying Without a Will in South Africa: Who Inherits Under the Intestate Succession Act

It is a formula, not a discussion

When someone dies without a valid will, the Intestate Succession Act 81 of 1987 decides who inherits and in what shares. It is a statutory formula. It does not care what the family agreed, what the deceased said out loud, or what anyone thinks is fair.

Heirs who all agree can afterwards redistribute what they have inherited among themselves by a redistribution agreement, which the Master will accept. But the starting point is always the Act.

Who counts as a spouse

Broader than most people expect. A spouse includes a partner in a civil marriage, a civil union, and a customary marriage recognised under the Recognition of Customary Marriages Act 120 of 1998, including customary marriages entered into before that Act came into force. Where there is more than one spouse in a valid polygynous customary marriage, each of them is a spouse for this purpose.

A partner in a permanent life partnership who was never married is a harder question and has been the subject of repeated litigation. If that is your situation, get advice specific to it rather than assuming either way.

The rules, in the order the Act applies them

1. Spouse, no descendants: the spouse inherits the entire estate.
2. Descendants, no spouse: the descendants inherit the entire estate, divided per stirpes, meaning by branch of the family rather than by head count.
3. Spouse and descendants: each spouse takes a child's share or R250,000, whichever is greater, and the descendants share the balance. If the estate is too small to give each spouse R250,000, the spouses take the whole estate in equal shares and the descendants receive nothing.
4. No spouse and no descendants, but a parent surviving: if both parents are alive they take half each. If one parent is alive, that parent takes half and the other half goes to the descendants of the deceased parent. If the deceased parent left no descendants, the surviving parent takes the whole estate.
5. Both parents predeceased: the estate is divided into two halves, one to the descendants of each parent. If only one parent left descendants, they take the whole estate.
6. None of the above: the nearest blood relations by degree of relationship inherit in equal shares.
7. No relatives at all: the estate is paid into the Guardian's Fund and, if unclaimed after 30 years, falls to the state.

What a child's share is

A child's share is the estate divided by the number of children who survived the deceased, plus the number of children who died before the deceased but left descendants of their own, plus the number of surviving spouses.

So with a spouse and two surviving children, the estate is divided by three. If a child's share works out at more than R250,000, the spouse takes the child's share. If it works out at less, the spouse takes R250,000 and the children divide what is left.

The R250,000 figure is set by the Minister of Justice by notice in the Gazette and was fixed at that amount in November 2014. Our calculator runs the arithmetic for a given family: /tools/deceased-estates/inheritance-calculator

The parts people get wrong

• Per stirpes, not per head. If one of three children died before the deceased leaving two children of their own, the estate splits three ways, and that deceased child's third is then shared by their two children. It does not become a four or five way split.
• Adopted children inherit from their adoptive parents exactly as biological children do, and no longer from their biological parents.
• Stepchildren who were never adopted do not inherit intestate from a stepparent, no matter how long the relationship lasted.
• A child born outside marriage inherits in full. Marital status of the parents is irrelevant to intestate succession.
• A retirement fund death benefit is not part of the intestate estate. Fund trustees allocate it among dependants under section 37C of the Pension Funds Act, on their own criteria.
• A life policy with a named beneficiary pays that person directly and is also outside the intestate estate, though it can still count as deemed property for estate duty.

The surviving spouse's maintenance claim

Separately from inheriting, a surviving spouse who cannot provide for their own reasonable maintenance needs has a claim against the estate under the Maintenance of Surviving Spouses Act 27 of 1990. It ranks alongside a dependent child's maintenance claim, and if the two compete they are reduced proportionately. It ranks ahead of heirs and legatees but behind ordinary creditors.

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