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Dying without a will: who inherits in South Africa

The Intestate Succession Act sets a fixed order, and a surviving spouse does not automatically get everything.

Ezra Labuschagne by Ezra Labuschagne
25 August 2026, 20:01
in Economy
Dying without a will: who inherits in SA | Southafriworld

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 youWho inherits
A spouse, no descendantsThe spouse inherits the whole estate
Descendants, no spouseThe descendants inherit the whole estate
A spouse and descendantsEach spouse takes the greater of R250,000 or a child’s share, and the descendants take the balance
Neither, but both parents are aliveThe parents inherit in equal shares
Neither, one parent alive, the deceased parent left descendantsThe surviving parent takes half, and the deceased parent’s descendants take the other half
No spouse, descendants or parentsThe nearest blood relatives inherit
No traceable relativesThe 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 valueFamilySpouse inheritsEach child inherits
R200,000Spouse and 3 childrenR200,000Nothing
R500,000Spouse and 3 childrenR250,000R83,333
R1,000,000Spouse and 3 childrenR250,000R250,000
R2,000,000Two spouses and 3 childrenR400,000 eachR400,000

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.

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Source: Intestate Succession Act 81 of 1987
Tags: estatesinheritancePersonal Financewills
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Ezra Labuschagne

Ezra Labuschagne

Ezra Labuschagne is the founder, editor, and publisher of Southafriworld, an independent South African digital news publication. Based in Pretoria, South Africa, he leads the publication’s editorial direction, publishing standards, content review, and audience strategy. His work focuses on current affairs, public interest reporting, business, the economy, public policy, and major developments that affect daily life in South Africa. As founder and editor, he is responsible for final editorial oversight, including source review, accuracy, updates, corrections, and publishing standards across Southafriworld.

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