The short answer
It depends whether there is a clause in your mother's will that precludes inheritance being part of the beneficiary's joint estate.
The whole question
Dear Athalie
My mother passed away two years ago, leaving my father and nephew alone in the house. Last year, my father met a woman who he has since married, even though she is from a different faith and has five children already.
My sister and I are the executors of our mother's will, in which she left everything to her grandchildren. Does my father's new wife have any rights to the estate? She has been collecting all the belongings in the house. What about my father's pension fund that was paid out in March this year? My parents were married for 38 years - are we entitled to half the money?
The long answer
If your father and mother did not sign an antenuptial contract when they got married, they would automatically have been married in community of property. That means that they had an undivided joint estate when she was still alive, meaning that all the assets and all the debts were shared equally, including debts or assets that one of them had before their marriage.
When your mother died, your father would automatically inherit half the joint estate. If your mother chose to leave her half of the joint estate to her grandchildren, rather than to her husband, she had a perfect right to do so. But your father would still be entitled to his half of the joint estate.
If your father and his new wife are married in community of property, they also share an undivided and equal joint estate. But the Western Cape government website says that “... this agreement (community of property) combines everything that you and your partner owned before and during your marriage. This excludes any items you’ve inherited.” (editor’s emphasis)
Mc Naught & Co says that a usual clause in a will would exclude any inheritance from any marriage by the beneficiary in terms of community of property. If there was no clause in your mother’s will excluding inheritance from being part of the joint estate because of community of property, this exclusion would not apply.
Fourie Stott says that if the marital exclusion clause is not inserted in a will, any bequest to a person married in community of property will form part of the joint estate and be shared with the beneficiary’s spouse.
So, it would be important to see exactly what your late mother’s will said about inheritance.
In terms of what taxes are payable, Munaf Muhadam from Gradidge-Mahura Investments says on Moneyweb that if the deceased spouse leaves their share of the joint estate to third-party beneficiaries such as children or relatives, the deceased estate will be liable for Capital Gains Tax (CGT) on all capital assets. They say that this does not apply to personal use items like cars, jewellery, furniture, artwork and so on, because these are seen as items for personal enjoyment rather than trade. So if these items are sold or transferred, they will not trigger CGT.
Muhadam goes on to say that assets inherited by the surviving spouse are exempt from CGT and estate duty.
So to sum up, your mother had the right to leave her half of the joint estate to the grandchildren, but your father is still entitled to half of the joint estate.
It may be worth consulting Legal Aid for more advice as to how you should handle this. These are the contact details for Legal Aid:
Tel: 0800 110 110 (Monday to Friday 7AM - 7PM)
Please Call Me: 079 835 7179
Email: communications2@legal-aid.co.za
You could also ask the Black Sash for free paralegal advice. Their contact details are:
Email: help@blacksash.org.za
Helpline: 072 663 3739 / 063 610 1865
If there is a trusted family member or friend who could set up a meeting between you, your sister and your father to discuss the situation, that might help too.
In terms of whether you and your sister have a right to your late mother’s share of your father’s pension that was due to be paid out to him in March of this year, I don’t think you have such a right:
If your parents divorced, their joint estate would come to an end and each ex-spouse would be entitled to 50% of the estate. It is now law that both their pension funds would form part of their joint estate and the non-member spouse would be entitled to claim 50% of the member spouse’s pension fund interest.
According to the Pension Funds Act, “pension fund interest” is the benefit that a member would be entitled to in terms of the rules of the fund if she or he resigned from the fund on the date of the divorce.
Section 7(8) of the Divorce Act allows the court that grants the divorce order to make an order awarding a specific portion of the ex-spouse’s pension or provident fund to the non-member spouse and orders the specific pension fund to pay out this amount to the non-member ex-spouse. The fund usually has 45 days to ask the non-member spouse to decide if they want to be paid in cash or to invest in a fund, and the non-member spouse has 120 days to make the decision.
But if they did not divorce, your father would not have been obliged to pay out a portion of his pension fund to your mother. If he has nominated you and your sister as beneficiaries of his pension fund, you will be entitled to benefits when he dies.
Wishing you the best,
Athalie
Answered on July 30, 2024, 10:06 a.m.
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