The short answer
Unless he made a will leaving his share of the property and assets to his girlfriend, she cannot claim his estate.
The whole question
My husband died before we could complete the divorce settlement. We were married in community of property, so the outcome was that the assets and property would be divided in half.
He was staying with his girlfriend, who now claims that she owns the house. Is there any legal basis for this?
The long answer
The law says that the settlement must be carried out within 12 months of the date of your divorce.
Did your late ex-husband leave a will? If he made a will leaving his 50% of the property and assets to his girlfriend, she would inherit his 50% share and you would own the 50% you were awarded through the divorce settlement. That would mean that, unless she was in a position to buy your share and you agreed to sell your share, or you were in a position to buy her share and she agreed to sell her share, the house and assets would have to be sold to pay you each your share.
But if he did not make a will leaving his 50% to her, and died without making a will, his 50% would be inherited by his heirs in terms of the Intestate Succession Act. That means that any children of his would have a child’s share of his 50% of the property and assets. To work out what a child’s share is, the value of his 50% would be divided by the number of his children, and his deceased children’s children, if there were any.
Even if the girlfriend had lived for a long time with your late ex-husband in that house, she would not have a claim to his 50% of the house if he did not leave it to her in a will.
When a death is reported, the Master of the High Court must give the person nominated a Letter of Authority to wind up the estate. If no one is nominated to have the Letter of Authority, the Master must appoint an executor.
The executor must pay all the debts of the deceased estate. When all the debts are paid, you can claim the balance of your 50% and your ex-husband’s heir/s will receive the balance of his 50%.
If you have to evict the girlfriend from the house, you cannot do so without a court order. And in this time of lockdown, if you get the court order, the court will not enforce the eviction until the lockdown is lifted unless they specifically feel it is fair and just to evict the girlfriend immediately. That would also depend on whether the girlfriend had alternative accommodation, or could be given alternative accommodation by the municipality.
You may want to ask Legal Aid for assistance in this situation. Legal Aid is a means-tested organisation that is supposed to assist people who can’t afford a lawyer. These are their contact details:
Legal Aid Advice Line (toll-free): 0800 110 110
Please-Call-Me number: 079 835 7179
You could also ask an organisation like The Black Sash for free paralegal advice:
Helpline: 072 66 33 73
Wishing you the best,
Answered on Sept. 23, 2021, 1:15 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.