Answer to a question from a reader

Must the deceased's wives inherit the estate in equal shares if the first marriage is under civil law and the other is customary?

The short answer

Not unless he wrote a will. You cannot remarry if you are still in a civil law marriage.

The whole question

Dear Athalie

My husband and I were married in community of property. We were not divorced but my husband married another woman under customary law. Will we share his estate equally now that he has passed away?

The long answer

If you and your husband were married under civil law, he would not have been able to legally marry another wife under customary law, unless he divorced you first. So, his marriage to the second wife would not be legally valid.

If you had been married under customary law, you would also have been automatically married in community of property, as the Constitutional Court has said that all marriages under customary law since 2000 are held to be in community of property unless they took out an antenuptial contract. 

Thus as the legitimate wife, you would inherit 50% of the joint estate because you were married in community of property. If your husband made a will, he could leave his 50% to the second wife. If he did not make a will, his children, if there were any, from both you and the second wife, would inherit in terms of the Intestate Succession Act. The children would each inherit a child’s share. A child’s share is the amount you get if you divide the value of the estate by the number of children, plus any children of deceased children.

Perhaps you should ask for legal advice on how to proceed: 

You could contact Legal Aid, which is a means-tested organisation that must assist people who cannot a lawyer. You can contact them here:

  • Legal Aid Advice Line (Toll-free): 0800 110 110

  • Please-Call-Me number: 079 835 7179

Wishing you the best,

Answered on March 3, 2022, 3:53 p.m.

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Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.