Persons who are married in community of property often make the remark when drafting a will in terms of which they nominate the survivor as the sole heir/heiress of the estate of the first dying: "If he / she dies, I inherit everything". Although it is true that the survivor gets everything, it is incorrect to say "I inherit everything".
A spouse in a marriage concluded in community of property is already the owner of half of the joint estate. The survivor, therefore, is the owner of half of the joint estate due to the matrimonial property regime of in community of property and therefore does not inherit the entire joint estate. In other words, the survivor inherits only half of the joint estate (the deceased's half) because the other half of the joint estate already belongs to him / her. If in this case, a person dies intestate (without a will), the surviving spouse retains half of the joint estate as his / her property and the other half (deceased's half) devolves upon the deceased’s intestate heirs.
The Intestate Succession Act stipulates that the surviving spouse is entitled to inherit an amount equal to R250 000 or a “child's share”, whichever is the greater. If half of the joint estate is R250 000 or less, the surviving spouse will inherit the deceased's entire estate (half of the joint estate). However, if half is greater than R250 000, it becomes more complicated and a “child's share” must be calculated and compared to R250 000 to determine which is greater. If the “child's share” exceeds R250 000, the surviving spouse will inherit the former. If the “child's share” is less than R250 000, the surviving spouse will inherit R250 000. The remainder of the deceased's intestate estate is divided between his other intestate heirs.
If persons are married out of community of propertysubject to the accrual system, the accrual claim must first be calculated. The spouse entitled to the accrual claim must first be awarded same before the estate of the deceased can be distributed / wound up. The person who acquires the accrual claim, acquires it by virtue of the matrimonial property regimeout of community of property to which the accrual system applies and is thus not inherited by virtue of succession.
An antenuptial contract in respect of a marriage outof community of property may contain provisions directly relating to the distribution of an estate. It is also not uncommon for spouses married out of community to be joint owners of assets and / or businesses such as partnerships and other legal entities. These are important aspects to identify to ensure that each player's legitimate claims are met.
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