Transfer of the House when your Spouse Dies
Home ownership in South Africa must be registered in the Deeds Registry. In other words, you are not the owner of a house, unless registered as the owner. So what happens to the deceased spouse’s share of the house when they die. As a starting point the surviving spouse does not automatically become the owner of the deceased share. The outstanding bond amount will have to be settled and the house transferred to the heirs per South African inheritance law. There is a process involved in becoming the registered owner of the house.
First, it depends on how you and your spouse were married? If you were married in community of property the house falls into the joint estate between husband and wife. This means that when your spouse passes away the surviving spouse is automatically entitled to a 50% share of the house. The other option is being married out of community of property. To be married out of community of property the couple must complete an Ante-nuptial Contract before they get married. If you are married out of community of property there is generally no joint estate and each spouse retains what they individually own. In other words, the surviving spouse is not automatically entitled to 50% share of the house.
Secondly, under a Will a marital couple can specify that their estate is bequeathed to the surviving spouse, this is commonly referred to as a Joint Will. In such a case, the surviving spouse is entitled to full ownership of the house – 50% share per the joint estate and 50% share per the Joint Will.
Lastly, if there is no Will, the surviving spouse is entitled 50% share per the joint estate (if married in community of property) and a child’s share by virtue of the Intestate Succession Act. A child’s share is the inheritance entitlement of a child. In South African law, children of the deceased are the closest blood relatives and thus qualify to inherit from the deceased. This means if there are 3 children each child inherits an equal share of the deceased estate. However, if the deceased was married; the surviving spouse is also entitled to a child’s share. South African law favours the surviving spouse over the children of the deceased, because the surviving spouse is at least guaranteed an amount of R 250 000.00 of the estate or a child’s share whichever is the greater.
As stated above, the property must be registered in your name to claim ownership of your home. At Siyatec we help you obtain registration of ownership of your home from a deceased estate. The first step is to get Letters of Executorship issued by the Master of the High Court. Siyatec will assist you with obtaining Letters of Executorship and walk you through the entire process until you are your home’s registered owner.
Author: Wafiq Davids (B SocSci, LL.B.)
Attorney, Notary, Conveyancer and Legal Consultant at Siyatec Executors