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Inheritance by spouses

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We continue looking at the administration of deceased estates and turn to one of the most contentious aspects of deceased estates succession.

BY MIRIAM TOSE MAJOME

Inheritance of deceased estates by spouses is a minefield given the complex nature of African family relations.

The complexity arises from the general acceptance of polygamy as an institution, extramarital relationships and out of wedlock offspring. Matrimonial property is distributed in the event of divorce or death of one of the spouses.

Marriage types

People can marry under either a civil law or customary law marriage Chapter 5:11 and Chapter 5:07, respectively. Whichever the marriage, marriage laws in Zimbabwe are out of community of property, meaning matrimonial property is not owned equally by the spouses.

In traditional African marriages, matrimonial property was never shared equally and this pretty much prevails.
The husband owned his property and the wife owned hers separately. Matrimonial property was always unequally owned and shared. One commonly held myth is that a civil marriage contracted in court or church is a so called 50/50 marriage because property is shared equally. This not true.

No marriage in Zimbabwe automatically accords equal ownership and sharing of matrimonial property.

Distribution by divorce

Matrimonial property is distributed according to each party’s contribution in its acquisition.

Married couples do not equally own the property acquired before or during the marriage simply because they have a marriage certificate.

It is quite possible and legal to walk out of a marriage and a matrimonial home at the dissolution of the marriage with nothing except one’s clothes if one did not contribute to acquisition of the acquired property.

If one spouse cannot prove a valid claim to the property, it cannot be awarded to them, as there is no automatic entitlement. To get a share of matrimonial property, entitlement has to be proved. Ownership of half of a spouse’s property is not guaranteed merely for saying “I do” to them and signing on the dotted line.

To protect property rights, immovable properties such as the matrimonial house should be registered in both names if both parties contributed to its acquisition.

The title deed should be registered in both names if jointly acquired and owned.

The days are ending when such valuable assets would be left entirely to the husband to take care of. More and more wives are becoming enlightened. When a marriage turns sour, as marriages often do, it is often the woman who is left holding the dummy and out in the cold. Unbelievably, some spouses, especially wives, mistake ownership of the house’s set of spare keys as proof of joint ownership of the house.

Some wives base their proof of joint ownership of the house on letters which come addressed to the house as “Mr and Mrs”.
Acquisition through death of spouse

People have absolute freedom over their property and personal interests. They are allowed to give their property to whomsoever they may want during their lifetimes and after they die. If there are no other valid claims competing for the estate property such as debts or court orders, the property can be distributed.

No law compels people to include family members such as parents, children and siblings or other relatives as beneficiaries in a will. The only exception is spouses and it will be discussed below. A will is not invalid merely because close family members were left out of it. The testator is not obliged to give reasons for excluding anyone from his or her will no matter how closely related they may be. Any person, including unborn children or juristic persons such as organisations and corporate bodies, can be beneficiaries of a deceased estate.

Disinheriting spouses

Wills cannot contain provisions that disinherit spouses from their legal entitlements to matrimonial property. If the spouses jointly own property, the other spouse cannot write a will that deprives the other spouse of their existing legitimate share.
For jointly owned property, there are two contesting legal opinions. One view advocates complete freedom of testation even for spouses.

It specifies that a spouse can give their property to whomsoever they want and can even exclude their spouse from inheriting in their estate. This opinion was held in Wakapila vs Matongo HH/71/08.

The husband, who had exclusive title to the house, had bequeathed it to a third party in his will, excluding his widow, which effectively ejected her from the house.

The High Court, at the time, upheld this position to be correct on the basis that a person has a right to deal with their own property as they wish.

Since marriages are out of community of property, a spouse has no automatic entitlement to their spouse’s property.
A person can, therefore, sell or mortgage their own property or pledge it as security for a loan without their spouse’s consent. If they can do this during their lifetime they can equally do this in their death.

Guaranteeing spouses

That view of absolute freedom of testation was later disproved in another High Court judgment Chiminya vs Chiminya HH/272/15.
The husband had similarly dealt with his house as he wanted and had disinherited his widow in terms of his will.

The widow contested the will and won and was given the right to inherit the house. Spouses were, thus, endowed with rights to inherit their deceased spouses’ properties even if they had been disinherited by a will.

As such, if a spouse disinherits the other spouse and excludes them from inheriting in their estate, the will can be contested on that basis.

A legitimate creditor that is one owed a debt or obligation can also contest a will if it deprives them of their rights to claim owing debts. The spouse acquires the other spouse’s immovable property if it was the immediate matrimonial home.

This is in terms of the Deceased Estates Succession Act Chapter 6:02 section 3A and it is quoted verbatim for emphasis: “The surviving spouse of every person, who on or after November 1, 1997 dies wholly or partly intestate shall be entitled to receive from the free residue of the estate (meaning if there are no debts or other obligations such as caveats or court orders against the property) the house or other domestic premises in which the spouses or the surviving spouse as the case may be, lived immediately before the person’s death and the household goods and effects, which immediately before the person’s death, were used in relation to the house or domestic premises referred to in paragraph (a).”

Next week, we discuss inheritance issues, where there are multiple spouses and out of wedlock children and their rights and entitlement to inheritance.

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