Moffat Mungazi
Trust Maanda
Legal Position
AS discussed last week, a surviving spouse is legally entitled to inherit the house or domestic premise they were residing in immediately prior to the death of the other spouse.
This is in terms of Section 3A of the Deceased Persons Succession Act; [Chapter 6:02].
It reads thus: “The surviving spouse of every person who, on or after the 1st November 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate-
“The house or other domestic premises in which the spouse or the surviving spouse, as the case may be, lived immediately before the person’s death.”
While the provision protects widows and widowers alike, it was introduced primarily in order to protect widows who mostly fell victim to greedy relatives of their late husbands who would grab every asset.
The intention of the legislature
The legislature wanted to protect widows and minor children against the bad practice by relatives of deceased persons to plunder the matrimonial property acquired by the spouses during their marriage
Residing at the premises as living together does not necessarily mean being physically present.
The circumstances of the spouse’s absence from the property must be examined to ascertain if the spouse was, not just temporarily away, but had intention to permanently be away.
The difficulty with the requirement to have resided at the premises immediately before the death of a spouse arises in a case where spouses are on separation or one of the spouses, for example the wife, is kicked out of the house and goes to stay elsewhere.
She will be deemed not to have been resident at the house immediately before the death of her spouse.
A challenge arises where the husband had more than one wife and they resided at different locations.
A wife who resided in the most expensive suburb will inherit that house while one who was staying in a shack in a low-income area will inherit that.
In some cases, one wife stays in the communal area while the other stays in town.
A wife only inherits the house which she occupied prior to the death of her spouse.
The first wife, for example, who worked all her life with her husband to acquire their property, and is sent to stay in the rural area, can be beaten to the house by the second or any subsequent wife who was residing with the husband in the house immediately before his death.
The Administration of Estates Act also provides for the inheritance of a house by a surviving spouse where customary law applies.
Section 68 provides that where the deceased person was a man and is survived by two or more wives, whether or not there are any surviving children, each wife, where they live in separate houses, should get ownership of or, if that is impracticable, a usufruct over, the house she lived in at the time of the deceased person’s death, together with all the household goods in that house.
Where the wives live together in one house at the time of the deceased person’s death, they should get joint ownership of or, if that is impracticable, a joint usufruct over, the house and the household goods in that house. This means the woman who was residing in the rural home will inherit that home while one in town will inherit that house.
In Benyure v the Master 2019(3) ZLR 156, Muremba J held that the spouse who is disposed of the matrimonial home is not protected by Section 3A of the Deceased Estates Succession Act in that the spouse would not have been residing at the house immediately before the death of the spouse.
In that case, a wife had been dispossessed of the matrimonial home 46 years before the man’s death.
She had taken no action about it all those years.
Muremba J said there is need for reform so that “lived immediately before the person’s death” does not prejudice spouses in various scenarios.
Most women are sometimes forced to go and stay in the rural area, and cannot speak for themselves. She said another scenario is where a couple chooses to live in a smaller house in a high-density suburb in order for them to lease their bigger house in an upmarket suburb in order to raise income.
The surviving spouse will inherit the smaller property in which they lived immediately before the death of a spouse while the bigger property will form part of the residue of the estate and subject to be distributed to all the estate beneficiaries.
If the spouses stay in a rented property, while letting their own, the surviving spouse will have no house to inherit. She can only participate alongside other beneficiaries to inherit their shares of its proceeds.
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
