Marriage and your estate

PROPERTY: NAVIGATING THE LEGAL IMPLICATIONS OF HOW YOU CHOOSE TO GET WEDDED

- Eric Jordaan

The legal implications of your marital property regime directly influence the treatment of assets if your marriage ends due to death. Before drafting your will, it's crucial to understand how your marital property system affects your property rights and asset distribution.

Marriage in community of property

If you are married in community of property, you and your spouse share a single joint estate, meaning all assets are collectively owned, regardless of whose name they are registered under. It's important to understand that there are not two separate estates, each containing 50% of the joint assets.

Upon the death of the first spouse, the entire estate must be administered. However, there are exceptions to joint ownership, such as inheritances specifically excluded or compensation received for personal injury claims, which remain the separate property of the recipient spouse.

In this system, both spouses are jointly and severally liable for all debts within the estate, including those incurred before and during the marriage, regardless of whose name the debt is registered in.

If the first spouse dies, the executor will settle all debts, including estate duty, excluding funeral and burial expenses.

The surviving spouse is entitled to 50% of the net value of the joint estate.

The remaining 50% will be passed to the deceased spouse's heirs, in accordance with the will or intestate succession laws.