What happens to the home when your spouse dies?
How Property Ownership is Affected When Your Spouse Dies
Marriage and Home Ownership in South Africa
When a spouse passes away, understanding the legal implications of property ownership in South Africa becomes crucial. The Deeds Registries Act mandates that ownership of immovable property must be registered in the Deeds Registry. This means that unless a person is the registered owner of a house, the law does not recognise them as the owner. The ownership of your home after your spouse’s death depends on various factors such as your marriage contract, the existence of a will, and the Intestate Succession Act.
Firstly, the type of marriage contract you and your spouse had plays a significant role. If you were married in community of property, which is the default way for a civil marriage, the house belongs to the joint estate between husband and wife. In this case, the surviving spouse is automatically entitled to a 50% share of the house. If you were married out of community of property through an Antenuptial Contract, there is generally no joint estate, and each spouse retains what they individually own.
Secondly, if a couple has a joint will that bequeaths their estate to the surviving spouse, the surviving spouse is entitled to full ownership of the house. This includes a 50% share by virtue of the joint estate and a 50% share by virtue of the joint will.
Lastly, if there is no will, the surviving spouse is entitled to a 50% share by virtue of the joint estate and a child’s share by virtue of the Intestate Succession Act. In South African law, children of the deceased are the closest blood relatives and qualify to inherit from the deceased. However, the law favours the surviving spouse over the children, guaranteeing the spouse at least R 250,000.00 of the estate or a child’s share, whichever is greater.
To claim ownership of your home, the property needs to be registered in your name. Siyatec Executors can assist you in obtaining registration of ownership of your home from a deceased estate. This process involves obtaining Letters of Executorship issued by the Master of the High Court.
Ownership of immovable property in South Africa must be registered in the Deeds Registry in terms of the Deeds Registries Act. This means that the law does not recognise a person as the owner of a house, unless they are the registered owner in terms of the Deeds Registries Act. This article discusses what happens to your home when your spouse passes away.
First, it depends on how you and your spouse were married? If you were married in community of property, which is the default way for a civil marriage, then the house belongs to 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. However, some couples decide that they do not want to be married in community of property. The other option is being married out of community of property. To be married out of community of property the couple must complete an Antenuptial 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.
Second, 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 by virtue of the joint estate and 50% share by virtue of the Joint Will.
Lastly, if there is no Will, the surviving spouse is entitled 50% share by virtue of the joint estate, as well as, a child’s share by virtue of the Intestate Succession Act. A child’s share is the inheritance a child of the deceased is entitled to. In South African law, children of the deceased are the closest blood relatives and, therefore, 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, to claim ownership of your home the property needs to be registered in your name. At Siyatec we help you obtain registration of ownership of your home from a deceased estate. The first step is to obtain 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 eventually you are the registered owner of your home. Later this week we plan to post an article which focusses on Muslim marriages.
To get things started all you need to do is complete our Online Consultation or call us on 021 201 7477 for a free telephone consultation. You can also Whatsapp us on 073 776 7911.
Author: Wafiq Davids (B SocSci, LL.B.)
Attorney, Notary, Conveyancer and Legal Consultant at Siyatec Executors
