a) Survived by Spouse but no descendants
The surviving spouses will inherit the entire estate even if the deceased is survived by parents/siblings
If there is more than one spouse - they will share the estate equally.
b) Survived by descendants, but no spouse
Descendants inherit the entire net estate.
Note: In the 1st Parentela division of an intestate estate between mupltiple descendants occurs per stirpes. (ISA s1(4)(a))
A has 3 kids (B; C; D dead w 2 kids). B and C will get a third each. D's kids has 1/6 each
C) Survived by spouses and descendants
Died after 24 Nov 2014
Spouse/s inherits childs portion OR amt determined from time to time by Minister of Justice & Correctional Services through the Gov Gazett - whichever amount is greater.
The amount stipulated for after 24/11/14 = R250K. Before = R125K
Child's portion: Net monatary value of estate/(no. of stirpes + no. of spouses)
Residue is spread among descendants
Note ISA s 1(4)(a) in terms of first parentela
Example: A - 2 spouses (X and Y); 3 children (B; C dead w 1 kid G; D Dead w 2 kids E & F). 5 Stripes.
950K/5 = 190K. 250K > 190K. Therefore X and Y get 250K each = 500K. Residue = 450K divided between As descendants per stripes with representation. 450K/3 = R150K. G gets R150K; E & F get R75K each.
Effect of Disqualification/Renunciation by Heir
Any benefit which they would have received if they hadn't been disqualified/hadn't renounced shall devolve as if they died immediately before the death of deceased and, if applicable, as if they was weren't disqualified
Appplies only if s 1(6) is not applicable on the facts at hand
The disqualified or renouncing heir is regarded as having predeceased the deceased
Example E's estate = R600K. $ kids (A, B C (dead) and D (murdered E - disqualified - 2 kids G &F).
S 1(7) directs that D must be treated as if D had predeceased E.
Three Stripes: (A, B, D). A & B get 600K x 1/3 each. G & F get 600 x 1.6 each. If D had no descendants, A&B would share).
If a descendant of deceased, excl. a minor/mentally ill descendant, who, together with the surviving spouse of the deceased, is entitled to a benefit from an intestate estate renounces his/her right to receive such a benefit, such benefit shall vest in the surviving spouse.
Applies only when:
1. a major and mentally healthy descendant of the deceased
2. renounced his/her right to inherit intestate from the deceased and
3. that descendant and the deceased’s surviving spouse are both be entitled to benefit from the deceased’s intestate estate
4. that descendant and the deceased’s surviving spouse are both be entitled to benefit from the deceased’s intestate estate
Example: E's estate = R1.2mil. Has wife V. Same child situation as before. 3 stripes + wife
V, A, B and D each inherits a child’s portion of R300 000. D renounced.
S 1(6): the renounced share vests in V as the surviving spouse and will not go to G and H by representation
D) Only Survived by both parents
Parents inherit net estate in equal shares.
Authority: 2nd parentela division of an intestate estate between multiple descendants occurs per stirpes with representation ( ISA s 1(4)(a) )
e) 1 parent & descendant of deceased parent
Surviving parent inherits half the estate and descendants of deceased parent inherit the other half.
If deceased parent is not survived by a descendant, the surviving parents inherits the entire net estate.
Example: E's parent = M(dead) & P. M survived by A from 1st marriage; B & C from marriage with P. R750K go to P. M has 3 stripes = R750 x 0.33.
f) Only descendants of deceased parents
Net estate if split into 2 equal parts (one for descendants of each parents).
Authority ISA s 1(4)(a) in terms of 2nd parentela
Example: E's parents = P & M (2nd marriage). P has 4 children: C (dead with children D&F), B, H (prev marriage), E is dead.
M has children 4: C ( dead with children D&F), B, G (prev marriage), E is dead. estate worth R1.2M
R600K divided amg P & M's descendants respectively.
P has 3 stripes: H (from prev marriage); B surviving child; C deceased with descendants
H & B get R200K (1/3 x 600K). D & F (1/3 x R600K)/2
M has 3 stripes: G(prev marriage); B; C.
G & B get R200K (1/3 x 600K). D & F (1/3 x R600K)/2
G = R200K; D = R200K; F = R200K; B = R400K; H = R200K
g) Descendant of one deceased parent.
The descendants of the deceased parent inherit the entire intestate estate.
Note ISA s 1(4)(a) in terms of 2nd parentela
h) Only relatives in 3rd parental/further
Net estate divided equally among those most closely related by degree to the deceased.
In the 3rd/further parentelae an intestate estate isnt divided per stirpes but per capita according to the Roman-Dutch principle ‘die naaste bloed erf die goed’ (the nearest blood relative(s) inherit(s) the estate)
Example: E's Cousin I and deceased cousin's (K) child L. I inherits E's entire estate because I is related to E by one degree less than L. If K was alive, I and K would split inheritance.
Child Born Out of Wedlock
ISA S 1(2): [H]aving been born out of wedlock shall not affect the capacity of one blood relation to inherit the intestate estate of another blood relation
This is thus treated the same as other intestate inheritance cases, with the exception adoption.
Postion of the Adopted Child
Their position is determined through a reading - together of s 1(4)(e) and 1(5) of the Intestate Succession Act with s 242(3) of the Children’s Act 38 of 2005
These provisions instructs that an adopted child is regarded as the child of the adoptive parent and not their biological parent..
Therefore, an adopted child can inherit intestate from his/her adoptive parent and vice versa. This relationship does not exist between the bio parents
Exeption in ISA s 1(4)(e)(ii) : An adopted child remains a descendant of his/her natural parent for purposes of intestate inheritance if: (i) the natural parent is also the adoptive parent or (ii) the natural parent was married to the adoptive parent at the time of the adoption.
Example: M is divorced with a child (E) and marries X. X then adopts E while married. If E dies, both parents inherit due to exception.