Married in community of property: what happens when your spouse dies?

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If you and your spouse are married in community of property, this means that you share a common and undivided patrimony made up of your respective assets and liabilities, including those accumulated before the date of your marriage. As a default matrimonial regime, there is usually no prenuptial contract that supports a community property marriage and the legal consequences of your marriage are set out in the Matrimonial Property Act 1984.

The matrimonial regime in community of property has many shortcomings, particularly with regard to debt. Both spouses in such a marriage remain jointly and severally liable for the other’s debt, including any debt incurred by either before the marriage. If your spouse dies heavily in debt, even though you had no knowledge of the debt, it could have devastating consequences when it comes to liquidating the joint estate. Here is what is going on.

Liquidation of the co-ownership

Upon the death of the first deceased spouse, the entire estate is liquidated. Indeed, there can be no “co-ownership” if there is only one owner. The executor of the joint estate will first have to settle all debts that exist in that estate, regardless of who incurred the debt or when the debt was incurred. Remember that the spouses in a marriage in community of property are jointly and severally liable for all debts, regardless of the name under which the debt is registered, including all contractual debts, loans, mortgage obligations. and credit cards.

Once the executor has paid all the creditors of the estate, you will then be entitled to 50% of what will remain in the deceased estate, while the balance will go to your spouse’s successors in the event of a testamentary succession, or to his heirs in the event of inheritance under the terms of the law on intestate inheritance. When the first-deceased spouse was heavily in debt, the surviving spouse may find themselves financially vulnerable – perhaps even financially devastated – due to the actions of their partner during their lifetime.

For example, consider a situation where a retired couple married in community owns their main residence which is valued at R 2 million. The couple have a R3 million investment they are drawing on to cover their living expenses. Before his death, the husband had engaged in a business venture which had failed and owed his creditors 2 million rand, unbeknownst to his wife. In his will, the husband bequeaths his 50% of the house to his adult daughter. When liquidating the joint estate, creditors will first receive the R 2 million owed to them, assuming the executor will use the R 2 million of the couple’s investment for these purposes. Please note that for the purposes of this example, we have not included the tax. The estate now consists of a property valued at R 2 million with the remaining invested capital of R 1 million. In terms of the deceased’s will, his daughter is entitled to 50% of the house, or R 1 million in value. This leaves the surviving spouse only a capital of 1 million rand to support her financially. She may therefore be forced to realize the value of the house to ensure that she has funds available to cover her living expenses, but only owns 50% of the property. As a result of the acts of the deceased, the surviving spouse could end up with insufficient capital to live on, even if she had not participated in the accumulation of the debt.

From an estate planning perspective, it is always advisable for married couples in community of property to have an overview of each other’s wills and to ensure that there is sufficient liquidity in the estate in the event of a loss. death of one of them.

Executor fees

By law, the executor is required to administer the entire estate upon the death of the first deceased spouse and not just half of the deceased’s share. As such, the fees of the executor and of the Master are calculated on the gross value of the joint ownership, all other current administration costs being borne by the joint ownership, with the exception of funeral costs or administration costs relating to property excluded from joint ownership (if applicable) which are paid from the 50% share of the deceased in the estate. When the first-deceased spouse bequeaths his share of the joint estate to the surviving spouse, this could lead to the double payment of the fees of the executor and the master on the same property. However, it is possible to negotiate the fees of your executor as soon as your will is drafted.

Inheritance

With regard to inheritance tax, only half of the deceased’s net inheritance is taken into account when determining the taxable inheritance, taking into account the reduction of R3,500,000.

CGT and transfer rights

With regard to the taxation of capital gains, death is assimilated to a transfer within the meaning of the CGT. If the first-deceased spouse bequeaths his share of the joint possession to the surviving spouse, the surviving spouse is deemed to have acquired the property at the same time, at the same price, in the same currency and for the same use as the deceased. However, on the death of the second dying spouse, the CGT must be paid. When the first-deceased spouse bequeaths real estate by will or when an heir inherits real estate as part of an intestate succession, no transfer tax is payable.

Bank accounts

Once the banks receive your spouse’s death notice, their accounts may be frozen. If you and your spouse share a common bank account, it may prevent you from withdrawing money from your bank accounts, keeping in mind that no debit order can flow to a frozen bank account. While the executor may ask the Master to release funds for the maintenance of the surviving spouse, this process can be time consuming and leave the surviving spouse strapped for cash.

Maintenance requests

One of the legal consequences of marriage is that it gives rise to an obligation of support between the spouses.

As such, when the original spouse does not make adequate financial provision for the surviving spouse in terms of a will, the surviving spouse can sue their estate under the Surviving Spouse Maintenance Act for the provision. reasonable child support. Needs. His request will benefit from the same preference as a request for maintenance of a dependent child.

As mentioned above, community of property is a deeply flawed matrimonial system that can result in financial harm to one spouse through the actions of the other spouse. That said, it is important for married couples in community of property to remember that only their 50% share of the net common wealth belongs to them. In addition, a spouse cannot use their will to remove property from the estate in the event of death.

Regardless of a couple’s matrimonial regime, all couples should undertake a transparent and comprehensive estate planning exercise to ensure that no difficulties arise upon death.

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