Understanding rights to inherit spouse’s assets

For ease of sharing the property left by the other spouse at death, it is most advisable to draft a will, which will provide a blueprint on how the deceased person intended to appropriate their assets.

IF A person chooses to marry another in Zimbabwe, there are different methods to contract such marriages which have a direct bearing on their rights to inherit from their spouses’ assets. A person may choose to have a civil law marriage in terms of the Marriage Act (Chapter 5:11) or a registered customary law marriage in terms of the Customary Marriages Act (Chapter 5:07).

There is a third type of union, which is regarded as a marriage in limited circumstances such as maintenance and inheritance.

This type of union is known as an unregistered customary law union, which is the focus of this discussion.

This union is contracted by way of paying a bride price, which will be accepted as confirmation of a union between two consenting adults. For this to be considered valid, payment of what is known as “rusambo” should have been made to the bride’s family.

Within the lives of the individuals in that union, their assets and liabilities accumulate to form what is known as an estate and for the purpose of inheritance; a deceased estate.

For ease of sharing the property left by the other spouse at death, it is most advisable to draft a will, which will provide a blueprint on how the deceased person intended to appropriate their assets.

There are, however, many people who die intestate, which means that they die without having drafted a will.

In that scenario, the Administration of Estates Act (Chapter 6:01) is the sole determining factor of how property should be shared. For this Act to function, the deceased person’s estate has to be registered with the Master’s office. This may be simplified to mean that the family of the deceased takes the death certificate of the deceased to the Master’s office to register the fact that they have lost their family member and this commences the estate registration process.

How is the estate registered? Once a communication that someone’s spouse has died intestate and there is property to be shared, the Master will summon the deceased’s family for a meeting for the purpose of choosing an executor.

The role of an executor is to administer the estate of the deceased person. Their duties include obtaining assets of the estate, selling them if necessary to pay taxes and debts owed by the deceased, make payments to the Master’s office for winding up of the estate and finally to distribute the assets left after all the expenses have been met.

The role of the executor is very important because many families tend to disagree on how property should be shared if there is no will that is available.

The family members who attend this meeting are generally expected to choose and agree on who can become an executor.

Where family members are not in agreement, the Master will appoint a person. This duty is not merely passed to a random person, but the Master can choose from the following list;

a) The surviving spouse (in this case the widow) b) The next of kin c) A creditor or creditors d) A legatee or legatees (this means a beneficiary in the estate).

In the administration of the executor’s duties, they have to be mindful of the widow and the children left behind by the deceased. Who has the right to inherit from a deceased estate? According to the Administration of Estates Act, only a person who is regarded as a beneficiary has the right to inherit from the deceased’s estate.

The definition of who constitutes a beneficiary is also clear; it is the spouse of the deceased, (for the purpose of this discussion, it means the widow) and the children of the deceased person regardless of whether or not they were born in or out of wedlock or that the deceased was no longer married to the other parent at the time of death. What portion of the estate is the

widow entitled to? It is necessary to be aware of what the surviving spouse and the children are entitled to during this process.

Even before the estate is wound up, widow will be the custodian of the property, which means that relatives and friends of the deceased have no right to take any property from the deceased’s estate.

The culture of property grabbing is a crime which can attract a fine or a custodial sentence.

It does not matter whether the relative is the mother, father or the brother of the deceased; they have no right to loot from the widow. When the executor finally distributes the property, the widow will be entitled to the house they were living in at the time the deceased died, if the deceased had registered title of the property and all household goods from that home.