If you pass away without leaving a valid Will, your estate will devolve strictly in terms of the rules of intestate succession, as stipulated in the provisions of the Intestate Succession Act (Act 81 of 1987).
In the case of a marriage in community of property, one half of the estate automatically belongs to the surviving spouse by virtue of the matrimonial regime. Although it forms part of the joint estate, this half-share remains the property of the surviving spouse and will not devolve according to the rules of intestate succession.
If the deceased leaves behind a spouse and children (including legally adopted children), both the spouse and the children will inherit a portion. Under the Act, the surviving spouse is legally entitled to receive either a fixed statutory amount of R250,000 or a child’s share, whichever amount is higher.
How to Calculate a Child's ShareTo determine the value of a child’s share, you must divide the total value of the deceased person's estate by the number of children plus one (representing the surviving spouse).
Consider these two practical legal scenarios:
- Scenario A (Out of Community of Property): A deceased wife leaves an estate valued at R3 million, survived by her husband and two children. The estate value is divided by three (the husband plus two children). Each heir receives R1 million. Because R1 million is greater than the statutory R250,000 baseline, the calculated child’s share applies.
- Scenario B (In Community of Property): A couple is married in community of property with a combined joint estate valued at R1.4 million. Upon the wife's passing, she leaves behind her husband and three children. The calculation follows two specific steps:
- The surviving spouse immediately receives his half-share of the joint estate, which amounts to R700,000.
- The remaining R700,000 forms the deceased's estate and must be divided by four (the surviving spouse plus three children), resulting in a raw calculation of R175,000 per dependent.