“My husband has just passed away. We were married in community of property. It has however now transpired that his will still determines that his ex-wife is the sole heir of his estate. Where does this leave me, and does she have a right to his whole estate?”
To answer this question, one must consider a number of legal considerations, the first being the provisions of section 2B of the Wills Act, 7 of 1953. Section 2B determines that if an individual dies within three months of becoming divorced and that person had a will predating the date of the divorce, the will would be implemented as if the previous spouse had died before the date of divorce, unless it is clear from the will that the testator intended to benefit their ex-spouse despite the divorce. It essentially provides a grace period for a testator to amend his or her will after divorce. If however, the testator does not amend their will in this period, the will shall be applied according to its provisions.
This means that if your husband passed away within three months from the date of his divorce from his ex-wife, then his ex-wife would not be entitled to inherit any part of your husband’s estate. However, if your husband died more than three months after his divorce, his will will be deemed valid and will be administered in accordance with its provisions. If we assume this is the case, it now raises the question of what this means for you who was married in community of property with your deceased husband. Does the ex-wife still get everything?
To answer this, we must look at what married in community of property entails. In South Africa this means that in the event of the death of one spouse, the surviving spouse will have a claim for 50% of the value of the combined estate, thus reducing the actual value of the estate by 50%. The estate is divided after all the debts have been settled in a deceased estate.
Accordingly, taking into account that you were married in community of property, you and your husband are therefore deemed to have owned everything in your joint estate in equal shares. Please note that some exclusions may apply such as donations or bequests received by a party married in community of property etc. However, in general your combined estate belongs equally to you and your deceased husband.
This means that on your husband’s death, the joint estate is divided and you get 50% in terms of matrimonial property law (marriage in community of property) and his ex-wife will inherit the amount available for distribution, in terms of his will. So, the ex-wife would not get everything, but neither will you.
Our advice would be to make sure that you have the will carefully reviewed by your attorney in light of the above. In general, this should also be heeded as a warning to any person who has been divorced to ensure that they review their will and make the necessary amendments to address their changed circumstances.