Will my late father's assets go to my stepfather if my mother and stepfather separate?

The long answer

If your mother and her new husband are married in community of property, they share an undivided and equal joint estate. The Western Cape government explains that this form of marriage combines everything both partners owned before and during the marriage, except for items inherited if they are explicitly excluded from the joint estate by a will. You can read more about this from a past letter of mine. 

If your father left a valid will that included the standard clause excluding inherited assets from any future community of property marriage, then your mother’s share of his estate would not form part of her joint estate with your stepfather. However, if your father died without a will, his assets would have been distributed according to intestate succession. If those assets ended up registered in your mother’s name and were not explicitly excluded, they may have become part of the joint estate with her new husband.

It’s also important to note:

• If inherited assets (such as property or money) are kept separate, they can stay excluded from the joint estate.

• But if your mother used inherited assets to buy or contribute towards joint assets with your stepfather, those assets would fall into the joint estate.

• The key is whether the inheritance was kept separate, excluded by a will, or mixed into shared property.

You can read more here:

• Mc Naught and Co — Inheritances and marriage

• Burger Huyser Attorneys — What is excluded

• PM Attorneys — Exclusions from joint estate

What you can do:

• Contact the Master of the High Court where your father lived to check whether his estate was reported and what happened to it.

• If the estate was never wound up or if there are disputes about what forms part of your mother’s joint estate, seek help from a legal aid organisation.

Here are useful contacts:

• Legal Aid South Africa

Email: communications2@legal-aid.co.za

Call: 0800 110 110

• Black Sash

Email: info@blacksash.org.za

Call: 021 686 6952

Wishing you the best,
Athalie