Over my years in this field I have encountered many different client needs requiring a somewhat strategic level of advice, and none more so than people with more than one spouse.
Many traditional cultures practice polygamy, and it has suddenly become a hot topic as the eponymous SA telenovela lights up our screens, having become a global Netflix hit.
So, let’s use today’s article to understand some of the implications for estate planning.
Polygamy, particularly in the form of polygynous customary marriages, is prevalent in SA in certain cultural and religious communities.
The Recognition of Customary Marriages Act 120 of 1998 (RCMA) formally recognises these unions, granting them equal status with civil marriages for many legal purposes.
However, this recognition introduces significant complexities in estate planning, where the interests of multiple spouses, children from different houses, and extended family often collide.
Without careful planning, intestate succession and property disputes can lead to prolonged litigation, family discord, and inequitable outcomes.
A core challenge lies in intestate succession. When a person dies without a will, the Intestate Succession Act 81 of 1987 governs distribution.
Court rulings, including those addressing polygamous Muslim and customary marriages (e.g., Hassam v Jacobs), have extended protections so that each surviving spouse is treated as a “spouse” for inheritance purposes.
Each spouse typically receives the greater of R250,000 (or the inflation-adjusted amount) or a child’s share of the estate, with the residue divided among descendants.
A child’s share is calculated by dividing the estate by the number of surviving children plus the number of surviving spouses.
This formula aims for equality but often creates practical difficulties. Disputes arise over contributions to the estate, the status of different “houses” in customary law, and competing claims.
Pre-RCMA polygamous marriages were historically governed by customary law, leading to uncertainty until the RCM Amendment Act of 2021 clarified joint and equal ownership, management, and control over marital property (including family, house, and personal property).
Post-RCMA marriages require a husband to obtain consent from existing wives and court approval of a written contract regulating the matrimonial property system before contracting further marriages—failure to comply can result in out-of-community regimes or invalid claims.
Proprietary consequences further complicate planning.
Customary marriages entered without proper contracts default to community of property in monogamous cases, but polygamous setups demand tailored agreements to protect individual and family assets.
Without these, surviving spouses and children may face claims on businesses, land, or pensions, exacerbating vulnerability for women who traditionally had limited control.
Estate planning tools offer solutions.
A comprehensive will is essential to specify asset distribution, appoint executors familiar with customary nuances, and establish trusts for minor children or specific houses.
Life insurance policies with nominated beneficiaries, inter vivos donations, and antenuptial contracts (where applicable) can ring-fence assets.
Professional advice from attorneys experienced in customary law is critical to ensure compliance with the RCMA, Intestate Succession Act, and Maintenance of Surviving Spouses Act.
In conclusion, while SA law has evolved to uphold equality and dignity in polygamous unions, the intersection with estate planning remains fraught with risks.
Proactive measures — wills, clear property contracts, and open family discussions — can mitigate disputes, safeguard legacies, and honour cultural practices within constitutional bounds.
Families in polygamous arrangements should prioritise legal counsel to navigate these challenges.
>creditparsans<Blueprint Finance Brokers owner Scott Roebert has been a financial planner for 25 years, specialising in bespoke investments and retirement planning. You can find him on Facebook