The short answer
It may be that your mother and children and the separated wife and her children are both entitled to inherit.
The whole question
My mother, my siblings and I lived with my father in his house although he was married to another woman. There is a lobola letter for my mother. Can we change the title deed to my or my mother's name?
The long answer
The Constitutional Court ruled in December 2021 in the Bwanya case that life partners must have the same rights as married people, and that Parliament must change the Intestate Succession Act and the Maintenance of Surviving Spouses Act within 18 months so that life partners are not discriminated against on the basis of not being married. In the meantime, these laws must be read to include life partners as spouses.
The problem is that your late father did not divorce his wife, and so she would automatically have a claim to 50% of the joint estate, because a civil marriage in community of property means the surviving spouse inherits 50% of the joint estate set up by their marriage. A customary marriage is also automatically in community of property, unless the spouses take out an ante-nuptial contract before their marriage.
The Intestate Succession Act (which is the law that is applied when a person does not leave a will) says that the spouse or spouses inherit the greater of R250,000 per spouse or a child’s share, and the children the balance of the estate. A child’s share is determined by dividing the intestate estate by the number of surviving children of the deceased and deceased children who have left issue, plus the number of surviving spouses.
So it may be that your mother and her children and the separated wife and her children are both entitled to inherit. If this is the case, it would probably mean that the house would have to be sold to pay both women and their children.
In terms of the Maintenance of Surviving Spouses Act, a surviving spouse (or life partner now) is entitled to claim against the deceased estate as follows:
“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 her reasonable maintenance needs until her death or remarriage in so far as she is not able to provide therefor from her own means and earnings.”
In other words, maintenance is not automatic – it depends on the circumstances of the surviving spouse. As the other spouse has her own house, it may be unlikely that she would be able to successfully claim maintenance from the deceased estate.
And as your mother is living in your late father’s house with her children while the other spouse has her own house, the other spouse would not need her late husband’s house for accommodation.
But is this a situation of two spouses who have equal claims to the deceased estate, or does it make a difference that there was a separation? These are questions that you will need to put to the Master of the High Court, who supervises and administers deceased estates.
You and your mother should take your father’s death certificate, his ID and your own IDs and the children’s birth certificates and any documentation about the house, to the Master of the High Court and ask for assistance.
There is also a helpline which the Chief Master of the High Court has established (Tel: 012 406 4805, email: email@example.com) where more information can be obtained.
You could also consult the following organisation, which was a friend of the court in the Bwanya 2021 Constitutional Court case, so they may well know about these questions:
The Women’s Legal Centre
Tel: 079 421 8197
Wishing you the best,
Answered on Jan. 17, 2023, 11:46 a.m.
See more questions and answers
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.