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In a traditional marriage between a man and a woman the man was, and in many instances still is, the breadwinner. Generally he is the key figure in enterprises such as farming, one-man businesses, partnerships, close corporations and private companies.
Estate and financial planning focuses mainly on his retirement, disablement and death. His will, whether a separate or joint will, also focuses on him as the first deceased or if he and his spouse should die simultaneously or shortly after each other.
But what would happen if his spouse dies first, especially in the case of a joint estate?
If in the case of a joint estate the woman dies first, a common problem is cash shortfalls. In a joint estate each spouse owns one half of all assets and is also liable for one half of all liabilities. A spouse may therefore bequeath his or her assets, including the net half of the joint estate, to any person or institution.
Even if the husband and wife have reached consensus regarding the execution of their joint will, he/she has the right to draw up a separate will that revokes his/her part of the joint will. Should this happen, the husband might be in for a few shocks when his wife dies, or vice versa, as far as the content of the will is concerned.
The husband would retain his one half of the net joint estate thanks to the marriage in community of property. He would lose control of the other net half or a portion thereof should he succeed with a claim in terms of the Maintenance of Surviving Spouses Act. Should sufficient cash not be available, the payment of the shortfall would have to be negotiated. Practical problems could arise, such as restrictions on the subdivision of agricultural land and the deceased spouse's heirs' share of the assets.
They would have to reach consensus on the division of assets and might have to enter into a redistribution agreement. If not, they might be faced with a possible sale. If consensus is reached, the heir might insist on immediate payment and the spouse would have to raise a large loan.
Although the wife might have had good intentions, her actions caused lots of problems for her husband. They could result, for example, in the collapse of the farming enterprise or other businesses.
This type of problem could also arise if the first-dying spouse dies intestate, i.e. does not have a will or the will is not valid. It is virtually impossible to avoid this type of risk, which will always arise in marriages in community of property.
What is most important is that sound advice should be obtained when a new will is drawn up or an existing will is reviewed.
(Sanlam Trust, February 2010)
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