Family & Relationships
You Inherited Nothing — The Estate Goes to the Children From His First Marriage
A surviving spouse is told they have no claim to the deceased estate because the deceased had children from a previous relationship, leaving the surviving spouse with nothing.
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8 minutes
The Situation
What They Said
“The estate belongs to the children from his first marriage. You are the second wife — you will not receive anything. The family has decided.”
A woman whose husband has died is confronted by his family or the executor of the estate with the claim that she is entitled to nothing because the deceased had children from a previous marriage or relationship. This is frequently used against women in customary marriages, long-term partnerships, or second marriages — exploiting their unfamiliarity with succession law.
The Fallacy
Family Council as Legal Authority — Substituting Custom for Statute
The family presents a collective decision as though it carries legal force equivalent to or superior to statute. It does not. The Intestate Succession Act governs who inherits when there is no valid will. It creates specific rights for surviving spouses that cannot be overridden by a family vote, tradition, or the preferences of children from a previous relationship. Additionally, even where a surviving spouse's inheritance share is small, the Maintenance of Surviving Spouses Act gives them the right to claim maintenance from the estate. These rights are statutory and cannot be extinguished by family consensus.
What the Law Says
Your Legal Foundation
Intestate Succession Act 81 of 1987
Section 1 — Intestate succession
“If a person dies intestate, their estate devolves as follows: if the deceased is survived by a spouse and descendants, the spouse inherits a child's share or the amount determined by the Minister by notice in the Gazette (currently R250,000), whichever is the greater. A child's share is the value of the estate divided by the number of surviving children plus one (for the spouse). The surviving spouse is always an heir and cannot be excluded.”
A surviving spouse has a statutory right to inherit from their deceased spouse's estate even where the deceased had children from a previous relationship. The family cannot override this right. The spouse inherits the greater of a child's share or R250,000 from the estate.
Maintenance of Surviving Spouses Act 27 of 1990
Section 2 — Right to claim maintenance
“The survivor of a marriage dissolved by the death of the other spouse has a claim against the estate of the deceased spouse for the provision of reasonable maintenance needs that cannot be met from their own means and earnings, if the survivor is in need of such maintenance, until such survivor's death or remarriage.”
Even if the estate is divided between children and the surviving spouse receives only a small share, the surviving spouse may additionally claim maintenance from the estate if they cannot support themselves. This right exists independently of their inheritance share.
Recognition of Customary Marriages Act 120 of 1998
Section 7 — Proprietary consequences of customary marriages
“A customary marriage in existence before the commencement of this Act which is not in community of property, must be regarded as if it is in community of property. The property rights of spouses in a customary marriage are determined in accordance with this Act and the spouses' customary law subject to the Constitution.”
Women in customary marriages — including polygynous customary marriages — have legal property rights in the marriage. A customary law wife is a 'spouse' for purposes of the Intestate Succession Act and the Maintenance of Surviving Spouses Act.
What Scripture Says
God's Word on This
Ruth 4:9–10 (NET)
“Boaz then said to the leaders and all the people, 'You are witnesses today that I have acquired from Naomi all that belonged to Elimelech and all that belonged to Chilion and Mahlon. I have also acquired Ruth the Moabitess, the wife of Mahlon, to be my wife, to preserve the name of the deceased on his inheritance.'”
In the book of Ruth, the surviving widow's right to provision from the estate of her husband is affirmed and legally enacted in the presence of witnesses. The law recognises the vulnerability of surviving spouses and provides specifically for their protection — as it has since ancient times.
Isaiah 1:17 (NET)
“Learn to do what is right. Promote justice. Give the oppressed reason to celebrate. Take up the cause of the orphan. Defend the rights of the widow.”
Scripture specifically calls for the defence of widows' rights — particularly against those who would use family or community power to strip them of what is lawfully theirs. The law provides for surviving spouses precisely to give effect to this ancient moral obligation.
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What They'll Say Next
Common Counter-Arguments
After you respond, they may push back with these arguments. Members get the full rebuttal for each.
They might say: “You were not legally married — you were just living together. Common-law spouses have no inheritance rights.”
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They might say: “He left a will — and you are not in the will.”
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They might say: “The family paid lobola — that means you married into the family, not that the family owes you anything from the estate.”
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