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Simon Dippenaar
Admitted Attorney of the High Court of South Africa.
B.Bus.Sci (UCT), LLB (UCT), PDLP (UCT)
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Death and marital regime

What happens to the estate on the death of a spouse depends on the marital regime

By Simon Dippenaar (as featured on FIN24.com)

No one wants to think about dying, but it happens to us all eventually. Since death is the one thing we can’t escape, it makes sense to make the necessary arrangements and then get on with living life to the full. If you are married, it’s important to understand what will happen to the marital property when you die.

You may have an antenuptial contract in place and you may have opted for a particular marital regime for a good reason – but it’s possible your reasoning didn’t extend to the end of your life. What may serve you well when you are young and economically active may not produce the best outcome for you on the death of your spouse. In this article we look at how the different marital regimes impact on the winding-up of the estate on death.

Marriage in community of property

If you and your partner married without an antenuptial contract, you are automatically married in community of property. (See What is an Antenuptial Contract? for the definition of the marital regimes.) All your assets are jointly owned, even if they belonged to you individually before the marriage. As we have explained previously, this joint ownership also extends to liabilities. The marital estate is a joint estate, owned equally by both partners.

In the context of death this means the joint estate is dissolved. After all, there can’t be a joint estate with only one owner. The joint estate must be wound up by an executor in terms of the Administration of Estates Act No 66 of 1965. The executor will pay any debts owed by the estate and collect any money owing to the estate. If there are any outstanding debts of either spouse that pre-date the marriage, these are not settled from the joint estate but from the net half of the debtor, whether they are the deceased or the surviving spouse.

When all debts have been settled, the surviving spouse is entitled to half the net balance of the estate. It’s important to note that this is not an inheritance, and no inheritance tax is payable. It belongs to the surviving spouse because of the matrimonial property system that defined the marriage, i.e. community of property. The other half of the estate goes to the deceased’s heirs.

Out of community of property

By contrast, if you are married out of community of property you each have your own separate estate. This does not change on death, so when one spouse dies, only the deceased’s estate is wound up. If the surviving spouse has a claim on the estate of the deceased (this could be an outstanding loan or other business arrangement), he or she must institute an action against the executor, like any other creditor. This includes a claim in terms of section 23 of the Matrimonial Property Act 88 of 1984 (MPA) regarding household necessaries.

With or without accrual

Unlike a joint estate, antenuptial contracts continue to apply after the death of one spouse. Therefore, if the marriage is out of community of property with accrual, and the accrual of the surviving spouse’s estate is less than that of the deceased spouse’s estate, the surviving spouse must lodge a claim with the executor against the deceased spouse’s estate for his or her share. Equally, if the accrual of the deceased spouse’s estate is less than that of the surviving spouse’s estate, the executor will lodge a claim against the surviving spouse on behalf of the deceased spouse’s estate.

Where there’s a will there’s a way

If the marriage is out of community of property, it is doubly important to have a will in place, to ensure the surviving spouse inherits in accordance with the wishes and intentions of the deceased, usually discussed and agreed jointly by the couple. In the absence of a will, the laws of intestacy apply.

Change of marital regime

If you are concerned by any of the issues raised here and wish to change your marital regime, you can do so by way of a postnuptial contract. You can also ensure your spouse is looked after financially in the event of your death via your will. For anyone with loved ones to protect, a will is a good idea, if for no other reason than that probate is considerably speedier and easier with a will in place.

We can help

Simon Dippenaar and Associates are experts in family law. We can help you consider all possible life events and choose the marital regime that is right for your circumstances. We can also assist with postnuptial contracts, wills and estate planning. If you’d like more information or want to discuss your situation, contact us on 086 099 5146 or 076 116 0623 or email sdippenaar@sdlaw.co.za.

For more about what happens when you are not married click here.

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Disclaimer

The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.