What are the rights of the surviving spouse?

28 Jan 2021 | 0 comments

Prior to the entry into force of the Beninese Code of Persons and the Family, legislation did not grant rights to the surviving spouse in the estate of the deceased. In addition, while the property of the deceased wife generally went to the surviving husband and any children, the division of property was not the same in the event of the husband’s death. Before the widow, the in-laws had all the rights in custom, making the deceased husband’s collaterals systematic claimants to the succession.

But the entry into force of the Beninese Code of Persons and the Family overturned these customary rules. Three hypotheses can then be observed in the access of the widower or widow to the succession of the deceased. Naturally, in one or other of the hypotheses, the surviving spouse and the deceased must have been legally married and there must be no situation of separation from bed and board that has become res judicata.

1st case : If the deceased left children

According to article 632 of the Code, “where the deceased leaves children, the surviving spouse is entitled to one quarter of the estate”. Thus, the widow will no longer be deprived of inheritance rights in the event of her husband’s death. Whatever the number of children of the latter, the law offers her a guarantee: that of a quarter of her husband’s property, to which one could add other possible liberalities.

She therefore has the right to receive 25% of the inheritance in full ownership. In addition, the surviving spouse’s share of the inheritance is necessarily equal to a quarter of the freehold property when the deceased had children with one or more persons other than him.

The remaining three-quarters of the inheritance, i.e., the remaining three-quarters of the estate, is divided equally among all the existing children, those he had with his last spouse and the others. Again, the rest of the family has, in principle, no right to inheritance.

2nd case : If the deceased husband of the surviving spouse has no children

According to article 633 of the Code of Persons and the Family, “when, in the absence of descendants, the deceased leaves ascendants and/or collateral relatives, his surviving spouse is entitled to half of the estate”.

Thus, when the deceased never had children, neither with his legal spouse nor with anyone else, the surviving spouse (the widower or widow) then receives half of the estate in full ownership.

The father and mother of the deceased, if both are still alive, on the one hand, and the collaterals, on the other hand, will share equally, the other half. And if only one of the parents is alive, that parent will receive only half of the quarter that went to him and the deceased. The other half of the remaining quarter of the estate (that of the parent who has disappeared) will in principle be added to the surviving spouse’s share.

3rd case : If the deceased has no children, collateral or ascendants

According to article 634 of the Personal and Family Code, “in the absence of descendants and relatives to the degree of succession, the estate devolves entirely to the surviving spouse”. In this case, the surviving spouse legally benefits from all the assets of the estate.

It should also be remembered that the surviving spouse and the deceased must have been legally married and there must not have been a separation from bed and board decision that has become res judicata, for the survivor to benefit from his or her rights.


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