Case study: intestate succession
Marriage in community of property
“I am married in community of property and am in the process of getting divorced. I inherited money from my parents last year who died without leaving a will. Can my wife claim a half share of what I inherited ?”
Mc Naught and Co says:
Yes, when you are married in community of property each party owns half of the assets of the joint estate as well as half of the liabilities. If your parents had a Will, a usual clause in a will would exclude any inheritance from any marriage by the beneficiary in community of property. However as they died without a will this exclusion doesn’t exist and the inheritance forms part of the assets of the joint estate to be shared on divorce or your death.
There is possibly some way to avoid this in terms of Section 9 of the Divorce Act 70 of 1979. This provides that in granting a divorce due to an irretrievable breakdown of the marriage, the court can take account various factors to determine how the estate should be divided, irrespective of whether the parties were married on or put of community of property. These include the length of the marriage, the circumstances giving rise to the breakdown, etc determining whether it would be unfair to one party should the property not be divided equally, in the case of marriages in community of property, or otherwise as set out on any Antenuptial Contract ie the court can vary the division in accordance with what should be fairer – the only difficulty is that the party claiming a different share has the onus of proving that their proposed new share would be more fair in the circumstances.
