Before you begin drawing your will it is important to understand the effect your marital status will have on the administration of your estate. Your marital status, and if you are married the proprietary consequences of your particular marital regime, might dictate which of your assets actually belong to you and can be bequeathed by you in your will. It might also give rise to claims which third parties could lodge against your estate. The possibilities are that:

  • You are unmarried
  • You are married in community of property
  • You are married out of community of property
  • You are married by customary marriage
  • Your marriage is governed by the laws of another country

The term unmarried applied to you if you have never married, if you are divorced or if you are widowed.

  • If you have never married you should be the sole owner of all your assets and the only person responsible for your liabilities; unless your assets are co-owned with someone else or another person has stood surety for your liabilities, both of which you should be aware of.
  • If you are divorced the terms of your divorce order relating to the division of assets and any maintenance obligations will be binding on your estate. These need to be taken into account when drafting your will so as to avoid complications after your death.
  • If you are widowed and inherited assets from your spouse, you might own those inherited assets subject to certain conditions, such as a condition directing what must happen to those assets on your death. It is important for your will to be drawn in accordance with those conditions, again to avoid unintended consequences after your death.

Married in community of property

Although many people are married in community of property to each other, this is the marital status which can cause the greatest unintended consequences if it is not properly provided for in your will.

A marriage in community of property means that you and your spouse co-own all your assets and are jointly responsible for all liabilities, regardless of whether they are registered in both your names or in only one of your names. You do not own a half share in each asset, and you are not responsible for only 50% of each debt – you both jointly own the whole asset and are jointly responsible for the entire debt. When a spouse who is married in community of property dies, the assets and liabilities of both spouses are administered by the executor who is tasked with the administration of the joint estate of the deceased spouse and the surviving spouse.

The effect on the administration of your estate is this. On your death your spouse’s half share of the joint estate vests in him or her by virtue of the marriage in community of property. Your executor can only distribute your half share of the joint estate to your heirs in terms of your will. This means that you cannot simply leave your car to your son/daughter – you can only leave your half-share of the car to your son/daughter. The most common solution to this problem is for spouses married in community of property to each other to execute a joint will. If you want to draw separate wills then you should seek professional advice to ensure your assets are correctly distributed to your heirs in accordance with your wishes.

Married out of community of property

This means that you executed an ante nuptial contract before you were married, or a post nuptial contract after you were married, either of which may or may not include the accrual system.

  • If you are married out of community of property with no accrual system in place, then the proprietary consequences are the same as if you are unmarried. If you plan to disinherit your spouse, however, be aware of the provisions of the Maintenance of Surviving
    Spouses’ Act No. 27 of 1990!
  • If your ante nuptial contract includes the application of the accrual system the same applies. The difference is that either your estate may have an accrual claim against your surviving spouse, or your surviving spouse may have an accrual claim against your estate, depending on whose estate has experienced the greatest growth during the marriage. It is important to take this into consideration when drafting your will.

Customary Marriages

These are governed by the Customary Marriages Act No. 120 of 1998, and it is your responsibility to ensure that your customary marriage is registered. If your customary marriage was not registered within the time frames set out below then you are unmarried.

If you were married before 15 November 2000 in terms of customary law and your marriage was registered within 12 months of 15 November 2000, then you are married even if you are married to more than one spouse by customary law. The particular customary law in terms of which you married will determine whether your marriage is in community of property, out of community of property, or whether some other proprietary system governs your marriage.

If you were married after 15 November 2000 in terms of customary law, your marriage must have been registered with 3 months after the date of your marriage in order to be recognised. If you have only 1 spouse then your marriage is in community of property unless you executed an ante-nuptial contract. If you decide to take a 2nd spouse you must bring a High Court application for the court to approve a written contract regulating the matrimonial property system of your marriages.

In summary, if you are married by registered customary union then you may be married either in community of property or out of community of property, or you may have another proprietary arrangement dictated by a court order or by customary law. Whatever the situation, it is important for you to ensure that your will is drawn in such a way as to allow your assets to be distributed to your heirs in accordance with your wishes.

Marriage governed by the laws of another country

If your marriage is not governed by the South African law but is governed by the laws of another country, then you must find out what effect that marital system has on your assets and liabilities so that you can draw your will accordingly.

If you missed parts 1 and 2 of this series and would like to catch up, you can find them either on our face book page, or on our website www.randles.co.za under the Randles News tab and then click on the Social Media link.

For more information on this or any other legal related queries please contact us at propertypages@randles.co.za or 033 392 8000
By Joanna Mayne – Director – Attorney, Conveyancer and Mediator

5 replies
  1. Tebogo Motsepe
    Tebogo Motsepe says:

    i have a question, me and my wife are married in community of property, my wife has a sole proprietorship company, we have bought almost every property in the name of the business, i have contributed immensely on the business even though am not in partnership with my wife. can i loose everything if we divorce or can i also claim a 50 percent share in the assets of the company.

  2. zee
    zee says:

    i have a question regarding in community of property – my father in law passed away and he has illegitimate children and children from a previous 10 year marraige. He got remarried and his wife is still alive. How does that work then regarding property.

  3. Vinesh
    Vinesh says:

    Hi, my dad passed away recently and my mum and dad were marriwd in COP. Does her investments and cash in her bank accounts included in the winding of my dads estate?

    • Randles
      Randles says:

      Good Day,

      Thank you for your enquiry on our article!

      Please note that our articles are for information purposes only and to do not establish a client relationship nor constitute legal advice.

      In order to ensure that you receive tailored advice in response to your query, please contact us to make an appointment with one of our legal practitioners who will assist further.

      Kind Regards,
      The Randles Team


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