Author: Lindsey Biccari
22 September 2020
BEQUESTS TO PERSONS MARRIED IN COMMUNITY OF PROPERTY
Making a bequest in your will to a beneficiary who is 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.
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to ensure that your will provides you and your beneficiaries with proper protection.