The law requires that the children and the spouse of the deceased are entitled to a part of the estate and cannot be forgotten or receive nothing. This amount is known as “reserved portion” and is there to ensure that those close to the testator will always receive a fraction of the estate.
Notwithstanding the reserved portion due to the spouse and children, a testator is still free to nominate anyone as heir and is also free to give any part of the estate to anyone in the form of a legacy.
The reserved portion is a right of credit which the children or the spouse may enforce against anyone in order to ensure that they get their fair share of the reserved portion.
Reserved portion due to the Children
If the testator has less than five children, a third of the estate must be reserved to them as the reserved portion. If the testator has five or more children, then half of the estate is held to be reserved portion due to the children.
In practice, this means that if a testator has three children, each child is entitled to inherit one-ninth of that parent’s estate. If the testator has five children, each child is entitled to one-tenth of the estate.
If one of the children predeceases the testator, that child’s share is passed on to the child’s heirs.
Reserved portion due to the surviving spouse
Where a deceased is survived by children or other descendants, the surviving spouse is entitled to one-fourth of the value of the estate in full ownership. If the deceased did not have any children, the surviving spouse is entitled to one-third of the value of the estate in full ownership.
The surviving spouse shall have the right to continue residing in the tenement occupied by that spouse at the time of death of the spouse.
When calculating the reserved portion of the surviving spouse, the tenement in which the surviving spouse continues to reside is to be excluded from the estate of the deceased, over which the surviving spouse has a right to the reserved portion.
The tenement subject to the right of habitation is excluded from the estate of the deceased over which the surviving spouse has a reserved portion.
The surviving spouse shall also have the right of use over any of the furniture in the matrimonial home belonging to the deceased spouse.
How is the reserved portion calculated?
The reserved portion is calculated on the “whole estate”, after deducting the debts due by the estate, and the funeral expenses. The estate is more than just what the testator left at the time of death. It also includes nearly all the donations made by the deceased, in favour of any person whosoever. Therefore, if during his lifetime the testator gave a donation to a third party, that donation has to be included in the estate of the deceased.
By having all these donations included in the estate of the testator, the person entitled to their reserved portion will be proportionately increased.
The idea behind including all the donations made by the decease when calculating the estate is to ensure that a person does not donate the property and thereby prejudice the children or the surviving spouse.
Challenging donations made by Testator
It may easily happen that a deceased donates property and thereby prejudices the children or the surviving spouse’s right to the reserved portion. This could happen when a parent passes on the immovable property to one of the children or to a third party. Upon that parent’s demise, the other children won’t get their fair share of the reserved portion.
In these circumstances, those who are entitled to the reserved portion may require that person who received the donation which prejudiced their right to the reserved portion to reimburse them so as to ensure that their right to the reserved portion remains unprejudiced.