Married in Community of Property: What Happens to the Estate When One Spouse Dies

The one thing to understand first

In a marriage in community of property there is a single joint estate that both spouses own in undivided half shares. When one spouse dies, the joint estate is dissolved. The survivor keeps their half. Only the deceased's half is available to be inherited.

The survivor does not inherit their own half. It was already theirs. This matters because it is the source of most of the anger in these estates, when a surviving spouse is told the family home is being dealt with by an executor and hears it as their house being taken away.

The executor still administers the whole joint estate

Even though only half is being distributed, the executor deals with all of it. The joint estate has to be valued and its debts settled before the halves can be separated, because you cannot know what half is worth until you know the whole.

In practice that means the inventory covers all joint assets, the liquidation account shows the whole joint estate, and the distribution section then awards half to the surviving spouse and distributes the deceased's half under the will or the Intestate Succession Act.

Debt is joint too

• Debts of the joint estate are settled out of the joint estate before the halves are separated. The survivor cannot keep their half free of debt while the deceased's half absorbs all of it.
• This is why an estate can look solvent on assets alone and still leave a surviving spouse with much less than expected.
• A creditor of one spouse is generally a creditor of the joint estate. That includes debts the survivor may not have known about.
• If the joint estate is insolvent, the executor cannot simply distribute. Section 34 of the Administration of Estates Act applies.

Bank accounts, the bond and the car

• Accounts in the deceased's name are frozen. Accounts in the survivor's own name are also part of the joint estate and banks commonly restrict them until the executor is appointed. Have a personal account and some accessible cash somewhere that is not tied to the joint estate.
• A joint bond does not disappear. It remains a joint estate debt. The bank will want to know how it is going to be serviced, and will reassess whether the surviving spouse qualifies to carry it alone.
• Life cover ceded to the bond typically settles it, which is exactly what it was there for. Check whether such a policy exists before assuming the property has to be sold.
• A vehicle registered in the deceased's name still needs to be transferred through the estate, even where the survivor was the only person who ever drove it.

What the surviving spouse ends up with

Half of the net joint estate as of right, plus whatever they inherit from the deceased's half. If there is no will, the intestate rules give the spouse a child's share or R250,000 out of the deceased's half, whichever is greater.

Worked through on numbers, a spouse married in community with two children and a net joint estate of R1.2 million keeps R600,000 as their own half. The deceased's R600,000 half is then divided three ways, so the spouse also inherits R200,000 and each child receives R200,000. Our calculator handles the arithmetic: /tools/deceased-estates/inheritance-calculator

A practical note on costs

The executor's remuneration and the Master's fee are calculated on the gross assets of the estate as reflected in the account, and the regulations have historically directed that Master's fees for a marriage in community of property be assessed on the gross assets of the joint estate rather than on the deceased's half. If you are comparing quotes, ask each provider explicitly which base they are quoting on, because the difference on a joint estate is roughly double.

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