A plain-English guide
to the Intestate Succession Act 81 of 1987, the Constitutional Court judgments
that reshaped it, and what the family of someone who died without a will
actually has to do.
Written by Roy Bregman, admitted attorney and
founding director of Bregman Moodley Attorneys Inc., with over 51 years'
experience in succession law. Read Roy's biography
|
KEY TAKEAWAYS •
If someone dies without a
valid will, the Intestate Succession Act 81 of 1987 decides who inherits. It
is a formula, not a discussion. •
The order is: spouse,
descendants, parents, the parents' descendants, then more distant blood
relations, and finally the Guardian's Fund. •
Almost all of the
litigation has been about one word — “spouse”. Six Constitutional Court
judgments between 2004 and 2021 widened it to cover Muslim, Hindu and
customary marriages, same-sex life partners and, in Bwanya, permanent
opposite-sex life partners. •
Parliament caught up on 3
April 2024, when the Judicial Matters Amendment Act 15 of 2023 wrote life
partners into the Act itself. •
Two 2025 High Court
judgments sharpen the edges: an heir can be shut out for unworthiness, and a
customary adoption only counts if the customary formalities were actually
observed. •
The estate must be
reported to the Master of the High Court within 14 days of the death. |
What happens when someone dies without a will in South Africa?
When a person
dies without a valid will, the Intestate Succession Act 81 of 1987 takes over
and decides who inherits and in what shares. This is called intestate
succession. The estate devolves according to a statutory formula rather than
according to anyone's wishes.
The formula is
rigid. It does not care what the family agreed around the kitchen table, what
the deceased said out loud, or what anyone thinks is fair. Heirs who are all of
age and all agree can afterwards redistribute what they have inherited among
themselves by way of a redistribution agreement, and the Master will accept
that. But the starting point is always the Act.
The Act also
applies partially. If someone made a will but left an asset out of it, or a
beneficiary in the will died first with no substitute named, that portion
devolves under the Act even though a will exists.
Who inherits, and in what order?
Section 1(1) of
the Act sets out the order of heirs. Work down the list and stop at the first
category that produces a living heir.
Spouse but no
descendants — section 1(1)(a)
The surviving
spouse inherits the whole intestate estate. Where the marriage was in community
of property, remember that the survivor's own half of the joint estate is not
inherited at all; it already belongs to them. Only the deceased's half is
distributed.
Descendants but no
spouse — section 1(1)(b)
The descendants
inherit the whole estate in equal shares. Where a child died before the parent
but left children of their own, that branch takes the deceased child's share
between them. This is division per stirpes, by branch rather than by head. With
three children, one of whom predeceased leaving two children of their own, the
estate still splits three ways, and that third is then shared by the two
grandchildren. It does not become a four-way or five-way split.
Spouse and descendants
— section 1(1)(c)
The spouse
takes a child's share or R250 000, whichever is greater, and the descendants
take the balance. A child's share is calculated by dividing the estate by the
number of surviving children, plus children who died first leaving descendants,
plus the number of surviving spouses. The R250 000 figure is fixed by the
Minister of Justice by notice in the Gazette and has stood at that amount since
November 2014.
Because most
South African estates are worth less than R250 000, the practical effect in
many intestate estates is that the surviving spouse takes everything and the
children take nothing.
No spouse and no
descendants — section 1(1)(d)
The parents
inherit in equal shares. If only one parent survives, that parent takes half
and the other half goes to the deceased parent's descendants — in other words,
the deceased's siblings and half-siblings. If the surviving parent is the only
one left standing, that parent takes the whole estate.
No spouse, descendants
or parents — section 1(1)(e)
The estate is
divided into two halves, one going to the relatives on the mother's side and
one to the relatives on the father's side, each half devolving on the nearest
relations in that line.
Nobody at all —
section 1(1)(f) and section 1(2)
The nearest
blood relation inherits. If no relation comes forward, the estate is paid into
the Guardian's Fund and held for 30 years, after which it goes to the State.
Who counts as a “spouse”? Thirty years of constitutional
litigation
This is where
almost all the case law sits. The Act itself has never defined “spouse”, and
for the first decade after 1994 the Master read it narrowly, to mean a party to
a civil marriage under the Marriage Act. A series of Constitutional Court
judgments dismantled that reading.
Daniels v Campbell NO
(2004) — monogamous Muslim marriages
Citation: Daniels v Campbell NO
and Others (CCT 40/03) [2004] ZACC 14; 2004 (5) SA 331 (CC), 11 March 2004.
Mrs Daniels was
married by Muslim rites only. The Master refused to treat her as a spouse. The
Constitutional Court held that “spouse” in the Act should be given its ordinary
meaning, which comfortably includes a party to a monogamous Muslim marriage. She
could inherit intestate and claim maintenance from the estate.
Bhe v Magistrate,
Khayelitsha (2004) — the end of male primogeniture
Citation: Bhe and Others v
Magistrate, Khayelitsha and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580
(CC), 15 October 2004. Read on SAFLII
This is the
most far-reaching succession judgment of the constitutional era. Until Bhe, the
estates of black South Africans who died intestate were dealt with under
section 23 of the Black Administration Act 38 of 1927 and the customary rule of
male primogeniture, under which only a male relative inherited. Women and
extramarital children were excluded entirely.
The Court
struck down section 23 and its regulations and struck down section 1(4)(b) of
the Intestate Succession Act, which had carved those estates out of the
ordinary regime. The result is the position we have today: one law of intestate
succession for everybody, in which widows, daughters and extramarital children
inherit on the same footing as anyone else. The Court also laid down how
estates are divided where the deceased was in a polygamous customary marriage.
Gory v Kolver NO
(2006) — same-sex life partners
Citation: Gory v Kolver NO and
Others (Starke and Others Intervening) [2006] ZACC 20; 2007 (4) SA 97 (CC).
At a time when
same-sex couples could not marry, the Court held that excluding the survivor of
a permanent same-sex life partnership with reciprocal duties of support was unconstitutional
and read those words into section 1(1) of the Act.
Hassam v Jacobs NO
(2009) — polygynous Muslim marriages
Citation: Hassam v Jacobs NO and
Others (CCT 83/08) [2009] ZACC 19; 2009 (5) SA 572 (CC), 15 July 2009. Read on SAFLII
Daniels had
dealt with a monogamous Muslim marriage and left the polygynous case open. In
Hassam the Court closed it, holding that the exclusion of widows of polygynous
Muslim marriages discriminated unfairly on religion, marital status and gender.
The remedy was to read the words “or spouses” into the Act after each use of
“spouse”, so that more than one surviving spouse can inherit.
A parallel line of High
Court authority, Govender v Ragavayah NO 2009 (3) SA 178 (D), reached the same
conclusion for a Hindu marriage.
Laubscher NO v Duplan
(2016) — the Gory order survives the Civil Union Act
Citation: Laubscher NO v Duplan
and Another (CCT 234/15) [2016] ZACC 44; 2017 (2) SA 264 (CC), 30 November
2016. Read on SAFLII
Once the Civil
Union Act 17 of 2006 allowed same-sex couples to marry, an executor argued that
Gory had done its work and fallen away, so that only a registered civil union
would do. The Constitutional Court disagreed. The Gory reading-in had not been
impliedly repealed, and an unmarried same-sex partner in a permanent
partnership with reciprocal duties of support could still inherit intestate.
This left an
anomaly that lasted five years: an unmarried same-sex partner could inherit,
but an unmarried opposite-sex partner in an identical relationship could not.
Bwanya v Master of the
High Court (2021) — permanent life partners
Citation: Bwanya v Master of the
High Court, Cape Town and Others (CCT 241/20) [2021] ZACC 51; 2022 (3) SA 250
(CC), 31 December 2021. Read on SAFLII
Jane Bwanya and
Anthony Ruch lived together as though married and were engaged when he died.
His will left everything to his mother, who had died before him, so the estate
fell to be distributed intestate. The executor rejected her claim on the basis
that she was not a spouse.
The
Constitutional Court held that section 1(1) of the Act was unconstitutional in
so far as it excluded the survivor of a permanent life partnership in which the
partners had undertaken reciprocal duties of support. Noting evidence that more
than three million South Africans are in life partnerships, the majority found
the exclusion to be unfair discrimination on marital status, and departed from
its own earlier decision in Volks v Robinson. The Court also held that
“support” must be given a wide meaning — it covers care and the emotional
dimension of a relationship, not only money.
The
declaration of invalidity was suspended for 18 months to let Parliament
legislate.
What Parliament did about it: the Judicial Matters Amendment Act
Parliament gave
statutory effect to Bwanya through the Judicial Matters Amendment Act 15 of
2023, which came into operation on 3 April 2024. Section 14 amends the
Intestate Succession Act to include the surviving partner of a permanent life
partnership in which reciprocal duties of support were undertaken; section 15
makes the equivalent change to the Maintenance of Surviving Spouses Act 27 of
1990.
So the position
is now written into the statute rather than read into it by a court. But
recognition is not automatic. A surviving partner still has to prove that the
partnership existed and that there were reciprocal duties of support — and
where other relatives stand to lose out, that is exactly what they will
dispute. In practice these claims turn on evidence, not on principle.
A partner who has
already received an equitable share of the estate by inheritance may not also
have a maintenance claim on top of it. The two remedies interact, and it is
worth taking advice on which to pursue.
What the Supreme Court of Appeal has said
The Supreme
Court of Appeal has been comparatively quiet on the Intestate Succession Act
itself, largely because the important challenges have gone straight to the
Constitutional Court as confirmation proceedings. Its main contribution is now
of historical rather than practical importance.
In Mthembu v
Letsela and Another 2000 (3) SA 867 (SCA) the Court declined to strike down the
customary rule of male primogeniture, holding that the challenge had not been
properly made out on the facts. Four years later the Constitutional Court took
the opposite view in Bhe and invalidated the rule outright. Mthembu is worth
knowing about because it is still occasionally cited by people who have not
caught up: it does not represent the law today.
Practitioners
should therefore not expect to find recent appellate authority on the core
distribution rules. Since Bwanya, the movement has been legislative rather than
judicial, and the working out of the detail has happened in the High Courts.
Who counts as a “descendant”?
The second
recurring question is who qualifies as a descendant. The answer is broader than
many families assume, but it is not unlimited.
•
Biological children inherit
whether or not their parents were married. The historical discrimination
against extramarital children is gone.
•
Legally adopted children
inherit from their adoptive parents and not from their biological parents.
•
Children conceived by
artificial insemination or born of a surrogacy arrangement have full capacity
to inherit.
•
A child conceived but not
yet born at the date of death is protected, and takes if subsequently born
alive.
•
Grandchildren take by
representation where their own parent died before the deceased.
•
Stepchildren who were never
adopted do not inherit. Nor do foster children.
Customary adoption sits in a category of its
own. Section 1 of the Reform of Customary Law of Succession and Regulation of
Related Matters Act 11 of 2009 treats a person who was accepted by the
deceased, in accordance with customary law, as his or her own child, as a
descendant. That is a genuine route in — but the words “in accordance with
customary law” are doing real work, as the next case shows.
Two 2025 High Court judgments worth knowing
Jacobs NO v Adams
(2025) — an heir can be declared unworthy
Citation: Jacobs NO and Another v
Adams and Another (2024-127653) [2025] ZAGPJHC 860; [2025] 4 All SA 655 (GJ);
2026 (2) SA 170 (GJ), Gauteng Division, Johannesburg, 24 August 2025. Read on SAFLII
Ivan died at 29
without a will, leaving no spouse, no children and no siblings, and a net
estate of about R716 000. Under section 1(1)(d) his two surviving parents would
each have taken half. His mother had raised him. His father had a brief
relationship with her when she was eighteen, made a handful of maintenance
payments extracted through the Maintenance Court in the first year, visited the
hospital once, and then had no involvement in his son's life for the remaining
29 years.
Snyckers AJ
declined to read the word “parent” in the Act normatively — the court would not
hold that a biological father stops being a parent in the statutory sense
simply because he behaved badly. But the court applied the common-law doctrine
of indignus, an extension of the old maxim that the bloody hand does not
inherit. Relying on Pillay v Nagan, it held that modern public policy allows
unworthiness to reach beyond violence to extreme parental neglect. The father
was declared unworthy, and the mother took the whole estate.
The lesson:
unworthiness applies to intestate estates as much as to wills, and it now
clearly covers serious dereliction of parental duty. A blood tie alone does not
guarantee an inheritance.
Tshali v Nandi (2025)
— customary adoption must actually be customary
Citation: Tshali and Another v
Nandi and Others, case no 5307/2022, Eastern Cape Division, Mthatha, 2025.
[Confirm the neutral citation on SAFLII before publication — see the note at
the end.]
A woman and her
son claimed to be the customarily adopted children, and therefore the intestate
heirs, of her late aunt, who had raised her from a young age. They pointed to
the deceased's medical aid card, her employer's records and her retirement
annuity, all of which named them as her children, and relied on section 1 of
the Reform of Customary Law of Succession Act.
The application
was dismissed. The court accepted expert evidence that customary adoption is
not something that happens quietly or by conduct. It requires the child's
natural parent and the adoptive parent to enter into an adoption agreement at a
meeting of the families, in the presence of a community leader, at which the
adoptive parent announces that the child is being taken as his or her
successor. None of that had happened, and the applicant's own father testified
that he had never relinquished his parental rights. The court accepted that
they had genuinely regarded the deceased as their mother, and made no order as
to costs.
The lesson:
customary law is fully recognised, but it must be followed properly. Being
raised in the household, and being named on a medical aid or a beneficiary
nomination, does not on its own make someone a descendant.
The case law at a glance
|
Judgment |
Court |
What it settled |
|
Mthembu v Letsela (2000) |
SCA |
Declined to strike down male primogeniture; overtaken by
Bhe and no longer good law |
|
Daniels v Campbell NO (2004) |
ConCourt |
A party to a monogamous Muslim marriage is a “spouse” |
|
Bhe v Magistrate, Khayelitsha (2004) |
ConCourt |
Male primogeniture and s 23 of the Black Administration Act
struck down; one intestate regime for everyone |
|
Gory v Kolver NO (2006) |
ConCourt |
Permanent same-sex life partners read into the Act |
|
Hassam v Jacobs NO (2009) |
ConCourt |
Widows of polygynous Muslim marriages included; “or
spouses” read in |
|
Laubscher NO v Duplan (2016) |
ConCourt |
The Gory order survived the Civil Union Act |
|
Bwanya v Master (2021) |
ConCourt |
Permanent life partners with reciprocal duties of support
may inherit; Volks departed from |
|
Judicial Matters Amendment Act 15 of 2023 |
Legislation |
In force 3 April 2024; writes life partners into the Act
itself |
|
Jacobs NO v Adams (2025) |
High Court |
An heir may be declared unworthy for extreme parental
neglect |
|
Tshali v Nandi (2025) |
High Court |
Customary adoption only counts if the customary formalities
were observed |
Who inherits in each scenario?
|
Scenario |
Who inherits? |
Legal basis |
|
Spouse, no descendants |
The spouse takes the whole intestate estate |
Section 1(1)(a) |
|
One child, no spouse |
That child takes the whole estate |
Section 1(1)(b) |
|
Several children, no spouse |
Equal shares, with a predeceased child's share going to
their own descendants |
Section 1(1)(b), per stirpes |
|
Spouse and children |
The spouse takes a child's share or R250 000, whichever is
greater; the children take the balance |
Section 1(1)(c) |
|
Two or more spouses and children |
Each spouse takes a child's share or R250 000, whichever is
greater |
Section 1(1)(c) read with Hassam and Bhe |
|
Permanent life partner, no marriage |
May inherit as a spouse if reciprocal duties of support are
proved |
Section 1(1) as amended on 3 April 2024; Bwanya |
|
No spouse or descendants |
Both parents in equal shares; failing that, the surviving
parent and the deceased's siblings |
Section 1(1)(d) |
|
No spouse, descendants or parents |
Half to the mother's side, half to the father's side |
Section 1(1)(e) |
|
No traceable relations |
Guardian's Fund for 30 years, then the State |
Section 1(1)(f), section 1(2) |
|
Heir found unworthy |
Treated as if they had predeceased; inherits nothing |
Common-law indignus; Jacobs NO v Adams |
What the family has to do
The
administration process is the same whether one person inherits or twenty.
1. Report the estate
to the Master of the High Court within 14 days
You will need
the death certificate, the deceased's identity document, a death notice, an
inventory of assets, a next-of-kin affidavit and, if relevant, the marriage
certificate and antenuptial contract. The estate is reported to the Master for
the area where the deceased was ordinarily resident.
2. Establish who the
heirs actually are
This is the
step that goes wrong most often. Check for a customary or religious marriage, a
life partnership, children from earlier relationships and children born outside
a marriage. Anyone who may qualify should be identified now, not after the
account has been advertised.
3. Get an executor or
a Master's Representative appointed
If the gross
value of the estate is R250 000 or less, the Master may appoint a Master's
Representative under section 18(3) of the Administration of Estates Act — a
shorter and cheaper route. Above that threshold, letters of executorship must
be issued. Nothing should be dealt with before the appointment comes through.
4. Open an estate late
bank account and gather the estate
Every rand must
move through a dedicated account in the name of the estate. Obtain
date-of-death balances, valuations of fixed property and vehicles, and details
of every policy and retirement fund. Policies with a living nominated
beneficiary usually fall outside the estate, and retirement fund benefits are
distributed by the fund's trustees under section 37C rather than by the
executor.
5. Advertise for
creditors
A notice to
creditors is published in the Government Gazette and a local newspaper, giving
creditors 30 days to lodge claims. Do not pay creditors out of turn.
6. Lodge the
liquidation and distribution account
Normally within
six months of appointment. The account sets out the assets, the liabilities,
the administration costs and the distribution. Once the Master approves it, it
must lie open for inspection for at least 21 days, advertised in the Gazette
and a local newspaper, so that anyone with an objection can raise it.
7. Distribute,
transfer and close
If no objection
is lodged, the debts are paid, the assets are transferred or paid out, transfer
of any immovable property is registered, and the executor lodges proof with the
Master, who files the estate as finalised.
Where this leaves you
Intestate
succession in South Africa is now a single, gender-neutral regime that
recognises a far wider range of families than it did thirty years ago. Muslim,
Hindu and customary marriages count. Same-sex partners count. Since April 2024,
permanent life partners count. Daughters and extramarital children inherit on
the same footing as anyone else.
But wider
recognition is not the same as certainty. A life partner has to prove the
partnership. A customarily adopted child has to prove the adoption. An heir who
neglected the deceased may be shut out. Every one of those questions is decided
after the death, by people who were not there, on affidavit.
A properly
drafted will removes all of it. It lets you choose who inherits, who
administers the estate and on what terms, and it spares your family the cost,
delay and bitterness of arguing about it afterwards. If you have been meaning
to make one, the case law above is a fair summary of what happens if you do
not.
Frequently asked questions
Does my partner
inherit if we were never married?
Possibly. Since
the Judicial Matters Amendment Act came into force on 3 April 2024, giving
effect to the Constitutional Court's decision in Bwanya, the survivor of a
permanent life partnership in which the partners undertook reciprocal duties of
support is treated as a spouse for intestate succession. But the survivor must
prove the relationship, and relatives who stand to lose out often dispute it.
Does a customary or
Muslim marriage count?
Yes. A
customary marriage recognised under the Recognition of Customary Marriages Act
qualifies, as do monogamous Muslim marriages after Daniels v Campbell,
polygynous Muslim marriages after Hassam v Jacobs, and Hindu marriages after
Govender v Ragavayah. Where there is more than one surviving spouse, each takes
a child's share or R250 000, whichever is greater.
How much does a
surviving spouse get if there are children?
A child's share
or R250 000, whichever is the greater. A child's share is the estate divided by
the number of surviving children, plus children who died first leaving
descendants of their own, plus the number of surviving spouses. Because most
estates are worth less than R250 000, the spouse frequently takes everything.
Do grandchildren
inherit?
Only by
representation. If a child of the deceased died first but left children, those
grandchildren share their parent's portion between them. Grandchildren whose
own parent is still alive do not inherit directly.
Can an heir be
disqualified from inheriting?
Yes. An heir
found “unworthy” at common law is treated as though they had predeceased and
inherits nothing. The doctrine traditionally covered unlawfully causing the
deceased's death, but Jacobs NO v Adams (2025) confirms it also reaches extreme
neglect of a parental duty.
What happens to the
estate if nobody can be traced?
The proceeds
are paid into the Guardian's Fund administered by the Master and held for 30
years. If no relation comes forward in that period, the money goes to the
State.
What happens if the
deceased had debts?
Debts, funeral
expenses and administration costs are paid before anything is distributed, and
the heirs receive the net balance. If the estate is insolvent it follows a
different procedure. The heirs inherit nothing, but are not personally liable
for the shortfall.
Do we need a lawyer to
administer an intestate estate?
Not always. A
small estate under section 18(3) can often be handled by a family member. But
once there is fixed property, a business interest, a trust, a foreign asset,
more than one possible spouse, or a dispute between heirs, professional help
saves time and prevents errors the Master will send back.
|
SPEAK TO US ABOUT A
DECEASED ESTATE We have been guiding families through deceased estates
since 1974. Whether you need an intestate estate reported and administered, a
disputed claim to heirship dealt with, or simply a will drawn so that none of
this arises, we can help. Call +27 (0)11 646 0335
• Email
info@bregmans.co.za • www.bregmans.co.za Bregman Moodley Attorneys Inc., Suite 316,
Killarney Mall, Riviera Road, Killarney, Johannesburg |
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