Tutorial 3: How to approach a question regarding Intestate
Succession
In your Study Guide on page 9 your lecturers made no secret about the fact that
you will definitely get a question on Intestate Succession in the exam. This
question usually accounts for at least 10 marks out of a 100, which means 10% of
your mark for the exam! It also represents half of the marks for your first
assignment.
IMPORTANT:
Please make sure you follow the same order of explanation (method) as set out in your
Study Guide on pages 10-11.
You will notice that they have 4 steps and I have 6, but the method is exactly the
same:
My steps 2-4 = their step 2 (calculate a child’s portion) – I have just broken it up into the
3 things you need to say.
PLUS I have included step 6, because you always have to explain why the other people
mentioned in the facts are not inheriting anything. What I am trying to say is that if you
follow the 6-step plan you will never forget anything.
These are the steps you need to follow:
1) DETERMINE THE VALUE OF THE DECEASED’S ESTATE:
The first thing you need to establish is whether the deceased was married and whether
the surviving spouse – or perhaps the deceased’s estate - is entitled to receive money
in terms of matrimonial property law.
A couple married in terms of SA law, namely a marriage concluded under the Marriage
Act, the Recognition of Customary Marriages Act or the Civil Union Act, have to choose
between the following matrimonial property regimes:
1) Married in community of property – surviving spouse is entitled to half of the
estate – this amount must be deducted before you start dividing the intestate
estate of the deceased.
, 2) Married out of community of property with the inclusion of the accrual system: in
this instance either the deceased’s estate or the surviving spouse will be entitled
to an amount accrual.
We will never expect you to calculate the accrual – instead we will always give
you the amount of accrual that the surviving spouse OR the estate of the
deceased is entitled to. You will learn how to calculate accrual in Family Law.
Just be careful and make sure you read the question a couple of times: in the
past we have stated that the deceased estate is entitled to the accrual and then
many students just assumed the accrual must go to the surviving spouse (where
she was a WOMAN) and deducted the accrual instead of adding it!!
Please note: the spouses are entitled to receive the money in terms of Matrimonial
Property Law – they do not inherit the money, they only inherit a child’s share or
R250000, whichever is more.
3) Married out of community of property without the inclusion of the accrual system:
spouses have separate estates and surviving spouse has no entitlement to any
money from the deceased estate in terms of matrimonial property law.
Surviving spouse is entitled to inherit in terms of the rules of intestate
succession – like all other spouses. See discussion below.
2) NOW STATE THE RULE THAT APPLIES TO THE SPOUSE(S):
“All surviving spouses are entitled to a child’s share OR the minimum statutory
amount of R250 000, whichever is more.”
From the definition it is clear that ex-spouses (where the parties divorced) and pre-
deceased spouses are not entitled to inherit.
Please do not make the mistake of referring to the amount of R250 000 as a child’s
share!! The child’s share is the amount you have to calculate and the spouse then either
gets a child’s share OR the statutory amount of R250 000, depending on which amount
is more.
Succession
In your Study Guide on page 9 your lecturers made no secret about the fact that
you will definitely get a question on Intestate Succession in the exam. This
question usually accounts for at least 10 marks out of a 100, which means 10% of
your mark for the exam! It also represents half of the marks for your first
assignment.
IMPORTANT:
Please make sure you follow the same order of explanation (method) as set out in your
Study Guide on pages 10-11.
You will notice that they have 4 steps and I have 6, but the method is exactly the
same:
My steps 2-4 = their step 2 (calculate a child’s portion) – I have just broken it up into the
3 things you need to say.
PLUS I have included step 6, because you always have to explain why the other people
mentioned in the facts are not inheriting anything. What I am trying to say is that if you
follow the 6-step plan you will never forget anything.
These are the steps you need to follow:
1) DETERMINE THE VALUE OF THE DECEASED’S ESTATE:
The first thing you need to establish is whether the deceased was married and whether
the surviving spouse – or perhaps the deceased’s estate - is entitled to receive money
in terms of matrimonial property law.
A couple married in terms of SA law, namely a marriage concluded under the Marriage
Act, the Recognition of Customary Marriages Act or the Civil Union Act, have to choose
between the following matrimonial property regimes:
1) Married in community of property – surviving spouse is entitled to half of the
estate – this amount must be deducted before you start dividing the intestate
estate of the deceased.
, 2) Married out of community of property with the inclusion of the accrual system: in
this instance either the deceased’s estate or the surviving spouse will be entitled
to an amount accrual.
We will never expect you to calculate the accrual – instead we will always give
you the amount of accrual that the surviving spouse OR the estate of the
deceased is entitled to. You will learn how to calculate accrual in Family Law.
Just be careful and make sure you read the question a couple of times: in the
past we have stated that the deceased estate is entitled to the accrual and then
many students just assumed the accrual must go to the surviving spouse (where
she was a WOMAN) and deducted the accrual instead of adding it!!
Please note: the spouses are entitled to receive the money in terms of Matrimonial
Property Law – they do not inherit the money, they only inherit a child’s share or
R250000, whichever is more.
3) Married out of community of property without the inclusion of the accrual system:
spouses have separate estates and surviving spouse has no entitlement to any
money from the deceased estate in terms of matrimonial property law.
Surviving spouse is entitled to inherit in terms of the rules of intestate
succession – like all other spouses. See discussion below.
2) NOW STATE THE RULE THAT APPLIES TO THE SPOUSE(S):
“All surviving spouses are entitled to a child’s share OR the minimum statutory
amount of R250 000, whichever is more.”
From the definition it is clear that ex-spouses (where the parties divorced) and pre-
deceased spouses are not entitled to inherit.
Please do not make the mistake of referring to the amount of R250 000 as a child’s
share!! The child’s share is the amount you have to calculate and the spouse then either
gets a child’s share OR the statutory amount of R250 000, depending on which amount
is more.
