Protected inheritances – keeping it in the family
Resolving to make a last will (or revising your existing will) and ensuring your estate fees are covered, is a good thing to do and not too complicated. A will can save you a lot of worry and make matters easier for your loved ones when you pass away.
There are a few things that are worth considering when it comes to estate planning and drafting your will, including protected inheritances. For example, is it possible to exclude someone’s current or future spouse from an inheritance you wish to leave them?
Inheritances are automatically excluded from the accrual calculation for marriages concluded out of community of property. And it is common practice to include a stipulation in a will that an asset (or assets) is to be excluded (protected) from the joint estate of a marriage that an heir may enter into. So, for example, a mother might bequeath her farm to her daughter on condition that the farm shall not form part of the joint estate of the daughter’s marriage in community of property, whether she is already married or will marry in future.
The Matrimonial Property Act sets the default regime for all civil marriages in South Africa (including customary marriages) as in community of property unless the parties to the marriage have concluded a so-called ‘prenup’ (actually known as an antenuptial contract), where they agree to marry out of community of property.
The default marriage regime creates a joint undivided estate where profit and loss are shared equally. This means that in the example above, if the daughter doesn’t have a ‘prenup’ and the mother doesn’t stipulate that what she’s bequeathing to her daughter should be excluded from her daughter’s joint estate, the daughter’s husband would be entitled to half the inheritance on death or divorce, and the farm would be at risk if he were to be declared bankrupt or have a court judgment against him.
On the other hand, inheritances are automatically excluded from the accrual calculation for marriages concluded out of community of property.
Persons living together in a permanent relationship may by law be regarded as ‘spouses’ for certain purposes, but there is no joint estate, as the law currently stands at time of writing (2025). Each of them retains their own separate estate.
It is important that heirs remain vigilant about protecting their inheritances.
Using the above example, the daughter – married in community of property – who inherited the farm from her mother, sells the farm and later borrows funds from a bank and purchases a townhouse, utilising her entire inheritance (the proceeds of the farm sale) to part-fund the purchase.
Her husband dies and his executor includes the full value of the townhouse in their joint estate. The daughter (spouse) objects. She is not his sole heir so potentially half of the townhouse will pass to his two children (from a previous marriage) in terms of his will. She argues that all or (at least) part of the value of the townhouse must be excluded from the estate as she used her inheritance monies to purchase it.
The case is referred to attorneys and conveyancers for an opinion.
The title deed to the townhouse makes no reference to the mother’s will and refers to the purchaser as married in community of property. The deed does not record that the property falls outside the joint estate by virtue of inherited funds and the provisions of a will.
Her late mother’s will did not say that the proceeds of the disposal of the farm, nor a property purchased to ‘replace’ the farm, would similarly be excluded from the daughter’s in-community marriage.
Her protection appears to be lost unless she can convince a court otherwise. Prospects of that appear slim. Proper instructions to the conveyancers and proper estate planning could have prevented this situation. In hindsight, it might have been better to amplify the exclusion details in the mother’s will or leave the farm to a trust for the daughter.
Do take the time to attend to your last will and testament, and, even if you already have a will, make sure it’s valid and up to date, and your next of kin know where to find it.