Dying Without a Will in South Africa: Intestate Succession Explained (2026)
When someone dies without a valid will in South Africa, their estate does not simply default to their closest relative. The Intestate Succession Act 81 of 1987 sets out a fixed order of who inherits, and how much, whether or not that matches what the deceased would have wanted.
Information last verified on 23 July 2026. This page provides general legal information about South African wills and estates law and does not constitute legal advice in an individual case.
The Statutory Order
Section 1 of the Intestate Succession Act sets a clear ladder, applied in order:
- Spouse, no descendants: the surviving spouse inherits the whole estate.
- Descendants, no spouse: the descendants inherit the whole estate.
- Spouse and descendants: the spouse inherits a child's share, or R250,000, whichever is greater, and the descendants share what remains.
- No spouse or descendant, survived by parents: both parents inherit equally; if only one parent survives, that parent gets half, and the descendants of the deceased parent (the deceased's siblings or half-siblings through that parent, or their descendants) share the other half; a half-sibling related only through the surviving parent does not share in that half, and the surviving parent gets everything if the deceased parent left no other descendants.
- No spouse, descendant or parent: siblings and half-siblings inherit, split by maternal and paternal line.
- None of the above: the nearest blood relatives inherit in equal shares.
South African law recognises more than one spouse where a valid polygynous customary marriage exists, and every such spouse is treated as a "spouse" for these purposes, with the specific mechanics covered below.
The R250,000 Figure: Confirmed Current
The R250,000 figure in step 3 above traces to a 2014 notice in the Government Gazette. A dedicated search of the Department of Justice's own notice archive for every year from 2015 to 2025 found no later notice revising it, and the Master of the High Court's own, currently live "Intestate Succession" page states plainly that a spouse inherits the greater of R250,000 or a child's share. This guide treats R250,000 as the current, confirmed figure as of 2026, sourced directly to the Master's own restatement of it rather than to the original 2014 gazette scan alone.
Working Out a Child's Share
A child's share is calculated by dividing the monetary value of the estate by a number equal to the children who survived the deceased, or who died before the deceased but left their own descendants, plus one (the "plus one" representing the surviving spouse).
Worked example: an estate worth R2,000,000 is left by someone survived by a spouse and three children. The child's share is the estate divided by four (three children plus one for the spouse): R2,000,000 ÷ 4 = R500,000. Because R500,000 is greater than the R250,000 fixed amount, the spouse inherits R500,000, and the three children share the remaining R1,500,000 equally, R500,000 each. Where the child's share works out to less than R250,000, the spouse instead takes the R250,000 fixed amount, and the children share what is left.
Adopted and Extramarital Children: Equal Treatment
The Act removes any distinction based on how a child came into the family or was born. A child born outside marriage inherits from, and can be inherited from by, their blood relations on exactly the same basis as a child born within marriage. An adopted child is treated as a descendant of their adoptive parent or parents, not of their natural parents, except where a natural parent is also the adoptive parent, or was married to the adoptive parent at the time of the adoption.
Customary-Law Estates and Polygynous Marriages
The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 (RCLSA) brought customary-law intestate estates under the same Intestate Succession Act rules used for every other estate, applying the same "child's share, or the fixed amount, whichever is greater" rule to a customary-law spouse. For the purposes of these rules, "spouse" includes every spouse of a valid polygynous customary marriage.
The polygynous-marriage mechanic is more precise than a simple "each spouse gets at least R250,000" rule. Where the estate is large enough to give every surviving spouse the full fixed amount, each spouse does receive at least that amount. But where the estate is not large enough to do that, the fixed-amount rule falls away entirely, and the whole estate is instead divided equally among the spouses only, meaning the descendants receive nothing in that scenario. The Master's own guidance states this fallback in exactly those terms. Where a child's share applies instead (because the estate is large enough that the child's share exceeds the fixed amount per spouse), the divisor becomes the number of children plus the number of spouses, rather than simply "plus one".
Bhe v Magistrate, Khayelitsha: Why the Rules Are the Same for Everyone
Before 2004, many customary-law estates followed the rule of male primogeniture, under which only the eldest male heir inherited, excluding daughters, younger sons and widows. In Bhe and Others v Khayelitsha Magistrate and Others [2004] ZACC 17, the Constitutional Court declared this rule, and the legislation that applied it, unconstitutional and invalid, and ordered that intestate estates previously governed by that customary rule be distributed under the ordinary Intestate Succession Act instead. This ruling is why customary-law estates now follow the same statutory ladder as any other estate, subject only to the specific polygynous-marriage mechanic described above, rather than a separate, male-only line of succession. Magistrates no longer administer deceased estates as a result; the Master of the High Court does.
Related Reading
To avoid intestate succession altogether by making a valid will, see making a valid will. For how an estate, with or without a will, is actually wound up, see winding up a deceased estate. The wills and estates section and the South Africa Laws hub link the wider site.
This guide is general legal information, not legal advice. For advice on your own situation, consult an attorney, or contact Legal Aid South Africa (0800 110 110) if you cannot afford one.
Frequently Asked Questions
Who inherits if someone dies without a will in South Africa?
It depends on who survives them: a spouse alone if there are no children, children alone if there is no spouse, or, if both survive, the spouse takes a child's share or R250,000, whichever is greater, with the children sharing the rest. If there is no spouse or child, parents and then siblings inherit under a further statutory order.
How is a child's share of an intestate estate calculated?
Divide the value of the estate by the number of children who survived the deceased, or who died before the deceased but left their own descendants, plus one for the surviving spouse. For example, an estate of R2,000,000 with three children and a spouse gives a child's share of R500,000 (R2,000,000 divided by 4).
Is R250,000 still the correct figure for a surviving spouse's minimum share?
Yes, as of 2026. It was set in a 2014 government notice, and a search of the Department of Justice's own notice archives for every year since found no revision. The Master of the High Court's own current page confirms R250,000 directly.
Do adopted or extramarital children inherit the same as other children?
Yes. An extramarital child inherits on exactly the same basis as a child born within marriage. An adopted child is treated as the descendant of their adoptive parent, not their natural parent, except in specific cases involving a natural parent who is also the adoptive parent.
What happens to a polygynous marriage's estate if it is too small to give every spouse R250,000?
The fixed-amount rule falls away, and the whole estate is instead divided equally among the surviving spouses only. In that scenario, the descendants receive nothing from the estate.
Why did customary-law estates change after 2004?
The Constitutional Court, in Bhe v Magistrate, Khayelitsha, struck down the customary rule of male primogeniture as unconstitutional, and ordered that these estates be distributed under the ordinary Intestate Succession Act instead, later refined for polygynous marriages by the Reform of Customary Law of Succession Act 11 of 2009.
Sources and References
- Intestate Succession Act 81 of 1987, section 1 (the statutory order of inheritance where there is no valid will)(justice.gov.za).gov
- Intestate Succession Act 81 of 1987, section 1(2) (extramarital children) and section 1(4)(e) (adopted children)(justice.gov.za).gov
- Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, sections 2 and 3 (application of the Intestate Succession Act to customary-law estates, and the polygynous-marriage rule)(justice.gov.za).gov
- Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17 (15 October 2004)(saflii.org)
- Master of the High Court, Intestate Succession (the current R250,000 figure, confirmed with a worked example, and the polygynous-marriage fallback)(justice.gov.za).gov