Question:

My husband has just passed away. We were married in community of property. However, his will still determines that his ex-wife is the sole heir to his estate. Where does this leave me, and does she really have a legal right to his whole estate?

Answer:

To answer this question, one must consider a number of legal considerations, the first being the provisions of Section 2B of the Wills Act 7 of 1953.

Unless it is clear from the will that the testator intended to benefit their ex-spouse despite the divorce, Section 2B determines that if an individual dies within three months of getting divorced and that person had a will predating the date of the divorce, the will would be implemented as if the previous spouse had died before the date of divorce.

It essentially provides a grace period for a testator to amend his or her will after the divorce. If, however, the testator does not amend their will in this period, the will should be applied according to its provisions.

This means that if your husband passed away within three months from the date of his divorce, his ex-wife would not be entitled to inherit any part of your husband’s estate.

However, if your husband died more than three months after his divorce, his will should be deemed valid and be administered in accordance with its provisions.

Assuming this is the case, it now raises the question of what this means for you. If you and your late husband were married in community of property, does the ex-wife still get everything?

To answer this, we must look at what being married in community of property entails. In South Africa, this means that in the event of the death of one spouse, the surviving spouse will have a claim for 50% of the value of the combined estate, thus reducing the actual value of the estate by 50%. The estate is divided after all the debts in a deceased estate have been settled.

Accordingly, taking into account that you were married in community of property, you and your husband are therefore deemed to have owned everything in your joint estate in equal shares.

Please note that some exclusions may apply, such as donations or bequests received by a party married in community of property.

In general, however, your combined estate belongs equally to you and your deceased husband. This means that in the event of your husband’s death, the joint estate is divided, leaving you with 50% in terms of matrimonial property law (marriage in community of property). His ex-wife will inherit the amount available for distribution in terms of his will. Therefore, neither you nor the ex-wife would get everything.

Our advice would be to make sure that you have the will carefully reviewed by your attorney. In general, this should also be heeded as a warning to any person who has been divorced to ensure that they review their will and make the necessary amendments to address their changed circumstances.

Article by Johnny Davis, associate, Phatshoane Henney Attorneys.
This article appeared in News24.com.

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