THE GUNSTONS BLOG

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What happens to your husband/wifes estate if they die without a will?

As Benjamin Franklin once penned, In this world nothing can be said to be certain, except death and taxes.” Death is a painful reality that we all have to deal with at some point.

What is needed then, is an adequate plan of action ahead of time for when such eventualities occur. A will should be drawn up when one anticipates death or when one owns substantial assets that require attention in the event of an accidental death.

That being said, often the death of a spouse a family member catches other family members and dependents unawares before a will has been drawn up, leaving a lot of confusion and fear with those responsible for the estate of the deceased.

So what happens if a spouse dies unexpectedly without having drawn up a will? Often we find that various family (and extended family) members climb into the estate in the hopes of claiming various portions of an inheritance. Lets say for example that you are the wife of a 45 year old man with 3 children all of school going age. Your husband in the course of your marriage has accumulated R2 million worth of assets, all registered in his name.

In the event of death, what happens to those assets? What rights do you have and what rights do the rest of the family hold?

In this instance, the wife does possess significant legal weight over the rest of the family. The law of intestacy will immediately determine who the various beneficiaries of the deceased will be, where a will is not present.

In broad terms, the estate will divided up into as many equal parts as there are between the children and the spouse. The spouse will have the Intestate Succession Act and the Maintenance for Surviving Spouse Act to support and protect her (or him). There is of course an exception to this law, that if a will was drawn up and the spouse and/or children were excluded from being beneficiaries to the estate then the law of intestacy does not apply.

Generally speaking, the Intestate Succession Act (Law of Intestacy) provides that the relatives are given preference in the following order:

First, the spouse of the deceased;
Then, the direct descendants of the deceased;
Only then, the parents of the deceased (only if the deceased died without a surviving spouse or descendants) and the siblings of the deceased (only if one or both parents are predeceased).

The Maintenance of Surviving Spouses Act 27 Of 1990 essentially provides, in certain circumstances the opportunity for the surviving spouse to make a claim for maintenance against the estate of the deceased spouse.

If upon death, the marriage is dissolved, the surviving spouse can claim against the estate of the deceased for the provision of reasonable maintenance needs until the surviving spouse dies or remarries. This is only applicable where the surviving spouse cannot by their own means provide for themselves.

It is of course advisable where circumstances permit, to speak to your lawyer about creating a will before death occurs to avoid potential confusion and family in-fighting after the death of a spouse. Be assured, however that the law still does look after you, the spouse (and children) where a will is not available.

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