Mr Themba* was married briefly when he was younger, but his marriage got annulled and as a result he did not suffer any consequences from his previous union. He is considering remarrying, but wants to know how this could affect his right to distribute his assets when he dies. Scorpion Legal Protection answers Mr Themba’s questions and looks at the laws that come into play.

In South African law, there are not many limitations on your right to distribute your assets as you see fit. Your will is your final expression of what you wish to happen to your assets when you die. However, there is some legislation that sets out the rules of what you can and can’t do. This includes the Constitution (which is the supreme law of the land), the Matrimonial Property Act, the Maintenance of Surviving Spouses Act, and the Pension Funds Act.

You also may not include any provisions in your will that are illegal, immoral or impossible to carry out, for example, asking your family to dump your ashes at your enemy’s home to spite them. Some spouses also try to include conditional clauses, for example, a husband who says his wife will get R500 000 if she stays off social media and doesn’t talk to other men for a month after his death. This isn’t illegal, but it is nearly impossible to enforce since no one can legally enforce the rule, and the condition does not make the will invalid, so the wife would inherit the R500 000 even if she did go on social media.

Your estate may not be 100% yours to bequeath depending on your marriage

Under the Matrimonial Property Act, how you are married may affect your ability to distribute your assets. For example, where a couple is married in community of property, they are equal owners of a single, joint estate. When one spouse dies, the joint estate is dissolved, and the surviving spouse has a claim for their 50% of the communal estate. This means that the first-dying spouse can only bequeath their 50% of the joint estate. For example, a man married in community of property cannot leave his house entirely to his son, since the wife legally owns 50%.

Similarly, where a couple is married with the accrual system, the first-dying spouse can only bequeath what remains after the surviving spouse has claimed their share of the accrual.

Marriage and duty of support

Our law creates a duty of support between two parties to a marriage, and this duty continues after death. This means that a surviving spouse can bring a claim against their deceased spouse’s estate for maintenance in terms of the Maintenance of Surviving Spouses Act if the deceased has not made adequate financial provision for them.

When looking at claims like this, the courts will take into consideration the financial position of the surviving spouse, their standard of living during the marriage, their ability to generate an income, as well as the amount available for distribution in the estate.

*Themba is not his real name. We have used a fictional name to protect his identity.

You may also be interested in:
Dealing with a deceased’s estate
Brother is hiding father’s will
3 must-know tips for CCMA arbitration

If you have a query, follow Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month from 11:30- 13:30).

* This is only basic paralegal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.