Important aspects about bequests to persons married in community of property

We thought we would highlight the importance of understanding what happens with bequests to someone who is married in community of property.

When making a bequest in your will to a beneficiary, the inheritance will fall into the joint estate of the beneficiary and his/her spouse in the event that they are married in community of property.

Therefore, should you wish to only benefit your chosen beneficiary, you will need to stipulate that in your will by expressly excluding the bequest from that beneficiary's joint estate which he/she shares with a spouse.

This exclusion will ensure that the beneficiary's inheritance remains his/her own and is excluded from the calculation of the value of the joint estate in the event that the marriage is dissolved such as on death or divorce.

An important exclusion though is that, notwithstanding such an exclusion in a will, the beneficiary will not be protected from a claim by his/her spouse's creditors.

The Supreme Court of Appeal (SCA) held in Du Plessis v Pienaar NO and others 2003(1)SA671 that where a person in a marriage in community of property incurs a debt, his/her spouse is also liable for that debt. That means that 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.

This information is vital regardless of the bequest including where you may for example want to live a home to your children one day. It is therefore vital that you discuss this with your Attorney to ensure you draw up a will that can cater for any such eventuality.

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