One, three or even 43 kids – Why your husband's out of wedlock children have every right to claim from his estate

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A father and son playing together.
A father and son playing together.

Your husband dies suddenly. And before he is even buried, you find out he had a number of children outside of your marriage.

And they all have a claim to the estate. If your husband had one, three or even 10 children out of wedlock, when he dies, they all have to be maintained. 

There's no question about it. Even if he, like Eastern Cape millionaire Mqokeleli Kepe, owner of Chithibhunga Funerals, had 47 children, all of them deserve a piece of the pie. 

Mqokeleli (68) left behind 47 children aged 10 to 36. Four were from his marriage. He died of Covid-19 related complications in 2020 and there have been reports of issues regarding his estate. 

We look at who is then responsible to make sure that everyone gets a fair share of the estate?

Well, the executor of the deceased’s estate takes care of all of that.

East London based attorney, Ayanda Gwabeni says regardless of whether children are born in or out of wedlock, they ought to be maintained.

“Wedlock does not even come into play here,” Ayanda explains.

“Whether children are from the marriage or not, they are still the deceased’s children.”

Read more | ‘When you have a will, you can rule from the grave’ – legal expert advises

Ayanda explains that all the children can claim part of the estate.

“The children of the deceased have a claim against the estate if the person has died intestate [without a will], but if there is a will, then everything will be distributed in accordance to the will.

“All children have a right to be maintained by their parents until they are of age to be self-sufficient. Minors can claim maintenance as well as being beneficiaries and adult children can claim as beneficiaries,” he says.

Read more | 5 reasons why you should always plan your estate in case you die

Ayanda says “whoever is appointed as the executor can have all the checks and balances such as paternity, when it is in question, by way of DNA tests.

“The executor has the responsibility to honor any claims if they are legally sound after the debts of the estate have been settled. Beneficiaries are only entitled to what is left over. Claims for maintenance normally take first priority because they are treated as liabilities and the rule of thumb is liabilities before benefits.”

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