The surviving spouse is always entitled to a share in the estate or, in case the deceased spouse has made a will, in the indisposable portion of the estate; thus, the surviving spouse is entitled to a share irrespective of whether the deceased has made a valid will or not. The share of the surviving spouse is determined on the basis of the existence of other heirs and in accordance with Section 44 of Cap. 195, as follows:

• i ) If the deceased leaves, besides the spouse, any child, or descendant thereof, then the portion of the spouse shall be equal to the portion of each child. Thus, if the deceased leaves a spouse and two children, the portion of the spouse shall be equal to one third. If a child of the deceased died in the lifetime of the deceased, then its children (i.e. the grandchildren of the deceased) shall be entitled to the share that their parent would have received if he/she were alive.
• ii ) If the deceased leaves, besides the spouse, no child nor descendant thereof, but any ancestor or descendant thereof within the third degree of kindred to the deceased, the portion of the spouse shall be one half of the estate or of the undisposable portion of the estate. It is submitted that the term ‘ancestor or descendant thereof’ should include also kindred not in the direct line, since otherwise any reference to descendants would be meaningless; any descendants in the direct line would be covered by (i) above. Thus, if the deceased leaves parents, grandparents, siblings, uncles, aunts, nephews or nieces, the share of the surviving spouse shall amount to one half. It is immaterial whether the deceased leaves one or several ancestors or descendants thereof within the third degree of kindred; the existence of only one is sufficient for the share of the surviving spouse to be restricted to one half.
• iii ) If the deceased leaves, besides the spouse, no child nor descendant thereof, nor any ancestor or descendant thereof within the third degree of kindred, but leaves any ancestor or descendant thereof of the fourth degree of kindred to the deceased, the share of the surviving spouse shall be three quarters of the estate or of the undisposable portion of the estate. Thus, if the deceased dies leaving cousins, or siblings of grandparents, or grandchildren of a sibling, the statutory share of the spouse shall be restricted to three quarters.
• iv ) If the deceased leaves, besides the spouse, no child nor descendant thereof, nor any ancestor or descendant thereof within the fourth degree of kindred to the deceased, the spouse shall inherit the whole estate or the whole undisposable portion of the estate.

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