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Bequests To Persons Married In Community Of Property

If you make a bequest to a beneficiary in your Will, the inheritance will fall into the joint estate of the beneficiary and his or her spouse, if he or she is married in community of property. Should you wish to benefit only the chosen beneficiary, your Will must expressly exclude the bequest from that beneficiary’s joint estate which he or she shares with a spouse. This exclusion will ensure that the beneficiary’s inheritance remains his or her own and is excluded from the calculation of the value of the joint estate when the marriage dissolves on death or divorce.


However, notwithstanding such an exclusion in a Will, the beneficiary will not be protected from a claim by his or her spouse’s creditors. The court in Du Plessis v Pienaar NO and others 2003 (1) SA 671 (SCA) held that where a person in a marriage in community of property incurs a debt, his or her spouse is also liable for that debt. This means that the creditors of the beneficiary’s spouse will be entitled to claim against the joint estate as well as against the beneficiary’s separate property in seeking settlement of their claim.


Contact us on 041 363 6044 or info@kaplans.co.za to ensure that your Will provides you and your beneficiaries with proper protection.



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DISCLAIMER:

This article is not intended to constitute legal advice and is produced for information purposes only and to provide a general understanding of the legal position relating to the topic. It is recommended that advice relating to the specific circumstances of your situation be sought from our attorneys before acting upon the content of this article. This article was written at a particular point in time and accordingly may not always reflect the most recent legal developments, if any, applicable to the relevant topic. Kaplan Blumberg and its partners and/or employees, are not responsible for any consequences which may follow upon any decision taken to act upon the information provided in this article.