Danai Chirawu Correspondent
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.

If the deceased person has more than one house and extra property outside of the property in the matrimonial home, this remaining property is then shared between this same surviving spouse and the children of the deceased.

What happens when the deceased person has more than one wife?

In more complex circumstances where the deceased man had more than one wife, each wife will be entitled to the house and property within the house which they lived in.

Indeed, if the first wife lived in the rural areas immediately before her husband’s death, she will be entitled to the property in the rural areas.

In this same example, if the second wife lived in a plush home in Chishawasha Hills at the time of her husband’s death, only she will be entitled to that house and property.

At this juncture, the importance of will writing can be seen. The children from both the first and the second wife will be entitled to whatever remains after the mothers have been given their share and even then, the law states that they share the remainder with their mothers as well.

The rationale of the lawmaker here is to ensure that the widow is protected even beyond her husband’s death and has security over property that she may have helped acquire.

It is advisable as a general rule of life to ensure that property jointly acquired is jointly registered so that even in death, there is that protection.

How is property shared amongst women who have different marriages with the deceased?

If someone is already legally married under civil law to the deceased person during the deceased’s death and that marriage came before the unregistered customary law union, it means that the woman from the customary law union is not entitled to inherit anything from the deceased’s estate.

This provision has been a topic of much debate because it gives priority and superiority to civil law marriages. What it generally illuminates ,however, is the importance of properly terminating civil law unions through divorce at the High Court before entering into an unregistered customary law union.

If a man is married to two women or more and decides to enter into a civil law marriage after he has already married the other women under customary law then he dies, for the purpose of inheritance, all marriages shall be considered to be customary law unions even though a civil law marriage exists.

The property will then be shared as if all wives were married under customary law.

Nowhere in the current law does it state that relatives have first preference to pick and choose which items of property they would like to inherit from the deceased.

It is the surviving spouse who has that ability and even then, they are only entitled to household goods and immoveable property and will have to share the remaining assets with the children of the deceased.

To avoid antagonising the family left behind following your death, it is again encouraged that everyone who has any assets to their name should draft a valid will to ease the distribution process.

For feedback questions and comments please feel free to email [email protected]

You Might Also Like