class notes: 13.02.2017

MEANING OF SPOUSE

Previously the term spouse covered legally married party in terms of the Marriage Act of 1961 (one man one woman). However due to  the constitutional principles of equality and non discrimination, the term spouse has been given a wider meaning which is the ff:

•The survivor who is married in terms of the Marriage Act;

•Muslim marriage in terms of muslim law as per the constitutional court decision in Daniels v Campell No and others

•Marriage concluded in terms of the black customary law

•Permanent same-sex relationship under the civil union Act of 1996

•Civil union in terms of Civil Union Act of 2006 of opposite sex or same sex

•At this stage the definition of spouse for the purposes of the law of succession does not cover partners living together in cohabitation, unless they entered into a cohabitation agreement providing for inheritance… that is in term of the Domestic Partnership Bill of 2008! Please note its not yet an Act

•Permanent same-sex relationship under the civil union Act of 1996

•Civil union in terms of Civil Union Act of 2006 of opposite sex or same sex

•At this stage the definition of spouse for the purposes of the law of succession does not cover partners living together in cohabitation, unless they entered into a cohabitation agreement providing for inheritance… that is in term of the Domestic Partnership Bill of 2008! Please note its not yet an Act

DECEASED SURVIVED BY SPOUSE OR SPOUSES AND DESCENDANTS

The spouse or spouses inherit the child’s portion of the estate or the amount determined

by the minister of justice in the Government Gazette from time to time (currently it is

250 000) whichever is greater. The size of the child’s portion of the spouse or spouses is

calculated by dividing the value of the estate by the number of the deceased descendants,

plus one if there is only one wife or plus two if there is two and so on.

The amount of the child’s portion of the spouse or spouses is then compared with 250

000 as determined by the minister and the spouse or spouses inherits whichever is a

greater amount.

The descendants inherits whatever is left in the estate after the spouse or spouses have

inherited. This means that descendants can only inherit from the estate if the amount

thereof is larger then 250 000 as determined by the minister, or any amount to be

determined by the minister in the near future.

Before the estate is even distributed in terms of the law of succession, if deceased was

married in community of property, the surviving spouse is entitled to half of the

deceased estate by virtue of being a wife. And it is only the other half belonging to the

deceased that will be distributed to which the wife is still entitled to a child’s portion

EXAMPLE 1

H ---- W

/ \

S D

H DIES – ESTATE = R600 000,00

WIFE → CHILD’S SHARE = R600 000,00 ÷ 3 = R200 000,00

OR R250 000,00 WHICHEVER GREATER

                      = R350 000,00

SON             → R175 000,00

DAUGHTER → R175 000,00