Moffat Mungazi
Trust Maanda
Legal Position
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.
Section 3A of the Deceased Persons Succession Act; [Chapter 6:02] protects the right of a spouse to inherit the matrimonial house which he or she was residing in immediately before the death of their spouse.
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; ..”
In coming up with Section 3A, the legislature intended the surviving spouse to inherit, the matrimonial home.
While it 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 was expressed in Chimhowa & Ors v Chimhowa & Ors 2011 (2) ZLR (2) 471 H @475G – 476C where Chiweshe JP (as he then was) said: “In reading the legislation governing deceased estates in so far as the rights of surviving spouses are concerned, it is important to bear in mind the intention of the legislature, bearing in mind that this branch of the law has in the last decade been the subject of much debate and controversy. A number of amendments have been brought to bear to this branch of the law. The chief driver of this process has been the desire by the legislature to protect widows and minor children against the growing practice by relatives of deceased persons to plunder the matrimonial property acquired by the spouses during the subsistence of the marriage. Under this practice, which had become rampant, many widows were deprived of houses and family property by marauding relatives, thus exposing the widows and their minor children to the vagaries of destitution. In many cases the culprit relatives would not have contributed anything in the acquisition of such immovable and movable properties, often the result of years of toil on the part of the deceased and the surviving spouse. This is the mischief that the legislature sought to supress in introducing provisions such as s 3A of the Deceased Estates Succession Act and s 68 F of the Administration of Deceased Estates Act and the Deceased Persons Family Maintenance Act [Cap 6:03].
In my view the legislature intended to protect, in the case of widows, that property acquired during the subsistence of their marriage to the deceased persons.”
A surviving spouse is entitled to inherit the house or domestic premise they were residing in immediately prior to the death of the other spouse.
The term ‘lived immediately before the person’s death’ has been interpreted to mean that the surviving spouse must have been resident in that property, and if not, there must at least be links that the deceased and surviving spouse regarded that property as their house in which they lived as husband and wife.
In Ndoro v Ndoro & Another HH 198-12 at p 6 guvava j (as she then was) said in order for a spouse to inherit the house, they must show that they lived in that house immediately before the deceased’s death.
In Chinzou v Masomera N.O &Others 2015 (2) ZLR 274(H) @ 279H upon considering the purpose and background of the legislation in question I stated that:
“… the intention of the legislature was that a surviving spouse in an intestate estate should not be uprooted from the house or domestic premises he / she lived in immediately before the death of the person, and provided such property formed part of the deceased person’s estate.”
Residing at the premises as living together does not necessarily mean being physically present.
In instances where a spouse is away on employment, education or such other reasons, but for all intents and purposes the spouse still considers the premises as the matrimonial house where he or she comes to as home, such spouse would still be considered as living at the premises.
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.
Due to circumstances that make a spouse not to live at the premises immediately before the death of the other spouse, rendering the spouse unable to inherit the property, there has been some calls for reform of the law.
This shall be discussed next week, if circumstances permit.
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
