I'm married in community of property and my husband owns an RDP house. Would his children and dependants from his late ex-wife benefit from our estate?

The long answer

Thank you for your email asking if there is any cost involved in the municipality registering you as a co-owner of your husband’s RDP house; what rights his 17-year-old stepchild from his late wife has, as well as the two minor biological children your husband has from his late wife, and what legal rights you have as a co-owner of the RDP house.

As you are married in community of property, you and your husband share a joint and undivided estate. Should you divorce, both of you would be entitled to 50% of the joint estate, which includes both assets and debts. Should either of you die, the surviving spouse would inherit 50% of the estate.

I don’t think you would pay a fee for an application to be a co-owner of your husband’s RDP house – I could find no mention of such a fee - as your marriage in COP already means you share a joint and undivided estate. As a co-owner, you must be consulted and agree to any changes proposed to the property.

As you probably know, when a person dies, a deceased estate must be reported to the Master of the High Court who would issue a letter of authority or appoint an
executor, depending on the value of the estate. If the value is under R250 000, a nominated person is given a letter of authority) to wind up the deceased estate. The person with the letter of authority must see to it that all debts are paid before the heirs can inherit. All minor children have a claim against the deceased estate.

If your husband was also married in COP to his late wife, they would also have shared the joint estate until she died, and he would have been entitled to 50% of the joint estate after all the debts had been paid. If his late wife had left her 50% of the joint estate to her 17-year-old son, he would be entitled to inherit it when he came of age. In the meantime, his share would be put in the Guardian’s Fund of the Master’s Office for safekeeping. This could mean that the house has to be sold to enable the child to inherit in due course.

The Western Cape government website says that “… community of property combines everything that you and your partner owned before and during your
marriage. This excludes any items you’ve inherited.” McNaught & 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 husband’s late wife’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.

If your husband’s late wife died intestate, (in other words, did not leave a will) your husband would be entitled to his 50% from the COP, and her 50% would be divided between her children, who would be able to access it upon reaching legal majority age.

Wishing you the best,
Athalie