Page 52 - Q&A 2019/2020

Who inherits the estate - the new wife or the ex?

Johnny Davis
September 2019

“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, Commercial
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 shall 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.

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