Dying without a will in South Africa means the Intestate Succession Act 81 of 1987 decides who inherits, and the Master of the High Court applies that order regardless of any promise made during your lifetime. If you leave a spouse and children, the spouse takes the greater of R250,000 or a child’s share, and the children divide the balance. If you leave a spouse and no descendants, the spouse takes everything. Since April 2024, a surviving permanent life partner can also inherit, provided the partnership involved reciprocal duties of support.
The order of inheritance
| Who survives you | Who inherits |
|---|---|
| A spouse, no descendants | The spouse inherits the whole estate |
| Descendants, no spouse | The descendants inherit the whole estate |
| A spouse and descendants | Each spouse takes the greater of R250,000 or a child’s share, and the descendants take the balance |
| Neither, but both parents are alive | The parents inherit in equal shares |
| Neither, one parent alive, the deceased parent left descendants | The surviving parent takes half, and the deceased parent’s descendants take the other half |
| No spouse, descendants or parents | The nearest blood relatives inherit |
| No traceable relatives | The estate ultimately falls to the State |
How a child’s share is calculated
A child’s share is the value of the intestate estate divided by the number of surviving children, plus the descendants of any predeceased child, plus the number of surviving spouses.
| Estate value | Family | Spouse inherits | Each child inherits |
|---|---|---|---|
| R200,000 | Spouse and 3 children | R200,000 | Nothing |
| R500,000 | Spouse and 3 children | R250,000 | R83,333 |
| R1,000,000 | Spouse and 3 children | R250,000 | R250,000 |
| R2,000,000 | Two spouses and 3 children | R400,000 each | R400,000 |
The R500,000 example is the one that surprises families. Divided four ways the child’s share would be R125,000, which is below R250,000, so the spouse takes the statutory R250,000 and the three children divide what is left.
Where the estate is R250,000 or less and there is a surviving spouse, the spouse takes the whole estate and the children receive nothing.
The R250,000 figure is set by ministerial notice and is adjusted from time to time. Confirm the current amount with the Master of the High Court before relying on it.
Who counts as a spouse
The Act recognises a wider group than many people assume:
- A person married under the Marriage Act.
- A person married under customary law recognised in terms of the Recognition of Customary Marriages Act 120 of 1998, including marriages concluded before that Act commenced.
- Partners in a civil union.
- Spouses in marriages solemnised by Muslim or Hindu religious rites.
Where there is more than one lawful spouse, each spouse receives a child’s share or R250,000, whichever is greater, as the R2 million example above shows.
Male primogeniture under customary law was struck down by the Constitutional Court in Bhe v Magistrate, Khayelitsha in 2004. Since then all deceased estates are administered under the Administration of Estates Act by the Master, and magistrates no longer supervise them.
What changed for life partners
For decades, an unmarried partner inherited nothing on intestacy, no matter how long the relationship had lasted.
In Bwanya v Master of the High Court, Cape Town and Others, handed down on 31 December 2021, the Constitutional Court declared section 1(1) of the Intestate Succession Act unconstitutional to the extent that it excluded surviving partners in permanent life partnerships. It ordered that the words “or partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support” be read in after the word “spouse” wherever it appears in that section, and suspended the declaration for 18 months so that Parliament could legislate.
Parliament gave statutory effect to the judgment through the Judicial Matters Amendment Act 15 of 2023, which came into operation on 3 April 2024.
Two cautions apply. First, many published guides still state flatly that a cohabiting partner inherits nothing, which no longer reflects the law. Second, the right is not automatic. The surviving partner must prove a permanent life partnership in which reciprocal duties of support were undertaken, and in practice claims turn on that proof rather than on the principle.
This is general information rather than advice on a particular estate.
What intestate succession does not touch
Several of the largest assets people own do not form part of the intestate estate at all.
Death benefits from a pension or provident fund are distributed by the fund’s trustees under section 37C of the Pension Funds Act, based on financial dependency, not by a will and not by the Intestate Succession Act. A nomination form is guidance to the trustees, not an instruction, which is why the rules on when a fund must pay out matter so much to surviving families.
A life policy with a named beneficiary pays directly to that nominee, outside the estate.
If the marriage was in community of property, half the joint estate already belongs to the surviving spouse. Only the deceased’s half is distributed.
Retirement savings accessed during life sit outside this framework entirely, including anything drawn under the two-pot retirement system.
Reporting the estate
The death must be reported to the Master of the High Court within 14 days. The Master then appoints someone to administer the estate.
For small estates below a threshold set by the Minister, the Master may appoint a Master’s Representative under section 18(3) of the Administration of Estates Act instead of issuing full letters of executorship, which is a shorter and cheaper process. Confirm the current threshold with the Master’s office, and note that it is a separate figure from the R250,000 spousal amount.
Common problems
A stepchild expects to inherit. Stepchildren have no automatic claim unless legally adopted. Adopted children inherit exactly as biological children do.
The family assumes the house passes automatically. It does not. Immovable property is dealt with as part of the estate.
An old will names a predeceased beneficiary. If the will fails, the estate may be distributed as if there were none. This is precisely what happened in the Bwanya matter.
A partner of many years is told they get nothing. Since April 2024 that is not the automatic answer. Get legal advice on proving reciprocal duties of support.
Children of a deceased child are overlooked. They step into their parent’s place and share what that parent would have received.
Frequently asked questions
Does my spouse automatically inherit everything?
Only if you leave no descendants. With children, the spouse takes the greater of R250,000 or a child’s share.
Can my partner inherit if we never married?
Yes, if the relationship was a permanent life partnership with reciprocal duties of support, following the Bwanya judgment and the 2023 amendment.
Do adopted children inherit?
Yes, on exactly the same footing as biological children.
What happens if nobody can be traced?
The estate ultimately falls to the State.
Does a will override all of this?
A valid will overrides the Intestate Succession Act, but it cannot direct retirement fund death benefits.
How soon must a death be reported?
Within 14 days, to the Master of the High Court.
What to watch
The main figure to track is the R250,000 spousal amount, which is fixed by ministerial notice and has not moved in many years despite inflation. A new notice in the Government Gazette would change every calculation above. Also watch how courts apply the life partnership test after the Judicial Matters Amendment Act, since the standard of proof required for reciprocal duties of support is still being worked out, and watch for any further amendment aligning the Maintenance of Surviving Spouses Act with the same position.
