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Succession refers to the process that occurs after a person has passed away and their belongings are distributed between their living relatives. This can only occur if you have a valid Will and Testament when you die.
If this is the case, then you are deemed to have died in “Testate Succession” and your assets will be distributed as you have specified in your Last Will and Testament.
However, if you do not have a valid Will and Testament when you die, you are deemed to have died “Intestate” and the laws that apply to Intestate Succession will be applicable.
Intestate Succession is governed by the Intestate Succession Act 81 of 1987, (“The Act”); this act determines whom the deceased heirs are and how any assets shall be divided. If a spouse remains but no descendants survive the deceased, that spouse shall inherit the full estate.
However, when a deceased person is survived by a spouse as well as descendants, the spouse shall inherit the larger of a child’s share or R250 000.00 (as determined by the government gazette).
The term “spouse” has over time adopted a broader interpretation than the original interpretation to “a spouse” being the survivor of a lawful civil marriage between a man and a woman. The current position follows the decision in the Constitutional Court to include, Muslim Marriages, Hindu Marriages, African Customary Law, Permanent Same-Sex life partnerships, and those married in terms of the Civil Union Act.
In a recent Constitutional Court case (March 2022), the court ruled that the word Spouse should include all Life-Partners who are in a permanent relationship. This is thus the most recent case where law is supporting the interpretation even through the Legislation has yet to be altered.
Life-Partners of the deceased would therefore qualify as spouses for Intestate Succession, however, to avoid any ambiguity and confusion, we strongly recommend drafting a Valid Will and Testament to be kept in a safe place. This can be amended regularly if your personal situation changes and will help avoid all grey areas that may arise.
Having a last will and testament in place will ensure that the financial interests of your heirs are protected.
It’s vital that your Will is drafted by an attorney who not only specialised in the drafting wills, but who also understands your unique needs and wants.
At Bailey Haynes Incorporated, we will assist both yourself and your loved ones through the estate administration process while offering sound advice on what is the best solution for your estate.
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