Answer to a question from a reader

Can the person who inherited 50% of a joint estate also inherit the surviving partner's 50% when they pass?

The short answer

Yes, if no will is written, the inheritance will be distributed according to the Intestate Succession Act

The whole question

Dear Athalie

What happens to the remaining 50% of a joint estate when the surviving spouse passes away without a will nominating a beneficiary? Can the surviving spouse give their half to the beneficiary that has already inherited 50% of the joint estate?

The long answer

A marriage in community of property means that both spouses own everything in equal shares. Inge Lamprecht in a 2017 article for Moneyweb, quotes Louis van Vuren, CEO of the Fiduciary Institute of Southern Africa (FISA) as saying: 

“In practice, this means that one party cannot bequeath what belongs to a partner without that spouse’s permission.”

In the case you ask about, since the surviving spouse is now deceased and did not leave a will, then the Intestate Succession Act of 1987 will apply. This Act lays out the order of inheritance when a person dies without leaving a will.

The beneficiaries in order of preference are:

  • The spouse of the deceased;

  • The descendants of the deceased;

  • The parents of the deceased (only if the deceased died without surviving spouse or descendants);

  • The siblings of the deceased (only if one or both parents are predeceased).

The Intestate Succession Act should be read in such a way that it can accommodate cases where the deceased was a husband in polygamous customary union:

  • When the deceased left only spouses and no descendants, the wives will inherit the estate in equal shares;

  • When the deceased left spouses and descendants, the spouses and descendants will inherit the estate in equal shares, but each wife should inherit at least R250,000;

  • When the estate is not large enough to allow each wife to inherit R250,000, the spouses will inherit the estate in equal shares while the descendants will not receive anything.

In terms of the order of inheritance laid out in the Intestate Succession Act, it would make no difference whether one of the beneficiaries had already inherited from the first-deceased spouse in terms of a will. As indicated above, such a will must have been approved by the surviving spouse, who has now died intestate. 

Of course, the beneficiary can choose to give their portion to the other beneficiaries, if they wish to.

Wishing you the best,

Answered on Dec. 7, 2022, 11:25 a.m.

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