What happens to the matrimonial home when death interrupts a marriage?
For many, the answer seems obvious; the surviving spouse remains protected and inherits. Yet, under Zimbabwean law, that expectation can either be firmly upheld or completely undone, depending on one critical factor, whether the deceased left a valid will.
This tension between protection and autonomy lies at the centre of Zimbabwe’s succession law framework.
In Zimbabwe marriages are, as a general rule, out of community of property. This means that each spouse owns and controls their property independently, unless there is joint ownership. While this principle promotes financial autonomy during the marriage, it has important consequences upon death. The estate of the deceased does not automatically devolve to the surviving spouse rather it must be distributed in accordance with the law governing succession.
Where a person dies intestate without having executed a will and the parties had a valid civil marriage, the law intervenes decisively in favour of the surviving spouse. In terms section 3A of the Deceased Estates Succession Act [Chapter 6:02], the surviving spouse is entitled to inherit the matrimonial home, as well as household goods and effects. This is not merely a technical rule, it is a deliberate safeguard aimed at preserving dignity, stability and continuity of life for the surviving spouse. The law, in this instance, speaks with a protective voice.
However, this protection is not absolute.
The legal position shifts dramatically where the deceased dies testate having executed a valid will. Here, the principle of freedom of testation takes precedence. Section 5(1) of the Wills Act [Chapter 6:06] provides for the freedom of testation where individuals have the right to dispose of their estate as they wish.
This raises a critical and often uncomfortable question: Can a surviving spouse be disinherited?
For years, there was uncertainty. Section 5(3)(a) of the Wills Act was interpreted as limiting the ability of a testator to exclude a spouse, suggesting that such disinheritance might render a will invalid. This interpretation appeared to introduce a moral boundary into what is otherwise a legal right.
That uncertainty was decisively resolved in the Supreme Court case of Chigwada v Chigwada SC188-20.
The judgment has reshaped the succession landscape the Court reaffirmed the supremacy of freedom of testation. It held that section 5(3)(a) does not prohibit the disinheritance of a surviving spouse and cannot be used to invalidate a will on that basis alone. Instead, the provision must be read in harmony with section 5(1), which entrenches the testator’s right to distribute their estate according to their wishes.
The implication is both clear and far-reaching: a surviving spouse has no automatic right to inherit where a valid will exists.
In conclusion, this position while legally sound, introduces a delicate balance between fairness and autonomy. On one hand, the law respects the deceased’s personal choices, even where those choices exclude a spouse. On the other, it exposes surviving spouses to potential vulnerability, particularly where they may have contributed; directly or indirectly to the acquisition or maintenance of the matrimonial home. It also brings into sharp focus the importance of estate planning.
by: Kudzai Bushu & Simbisai Nyathi
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