Losing one’s spouse can be, besides a sad time, a confusing and stressful time. Wondering about what will happen to your home should be the least of your worries while you are grieving

Understanding a few of the terms that are bandied around can go a long way in helping to avoid confusion. Terms to take note of are:

• Testate – this means that a person has made a will, which should stipulate to whom the property should be transferred or if it is to be sold.
• Intestate – this means that a person died without making a will.
• Deceased estate – this means the estate of the deceased person and encompasses all the assets and liabilities of the deceased, including any property registered in their name.
• Executor – this is the person appointed by the Master of the High Court (Master) to administer the deceased estate, to settle all liabilities if possible, to divide the assets among the heirs and to transfer the property from the deceased to the person who is entitled to it. The Master will issue Letters of Executorship to the executor as the authorisation by which the executor can perform their duties.
• Heir – this is the person who inherits the estate, or what remains of the estate, after all debts have been paid and legatees have been paid out.
• Legatee – this is the person to whom the deceased bequeathed movable or immovable property or even money.
• Joint estate – when parties are married in community of property they are regarded as having a joint estate.

The Master of the High Court will issue the Letters of Executorship once all the preliminary documents and information have been given to the Master, including a copy of the will if one was made.  We will not discuss the Master’s requirements in this article.

Once the Letters of Executorship have been issued, the property can now be dealt with.

WHERE THE DECEASED SPOUSE DIED TESTATE

In community of property

In terms of the Matrimonial Property Act 88 of 1984, you and your spouse own the property jointly by virtue of your marriage in community of property.

On the death of your spouse you are automatically entitled to an undivided half share in the property by virtue of your marriage.

Should your deceased spouse have bequeathed his/her share of the estate to you, you will then be entitled to take transfer of the deceased’s half of the property.

• The transfer of the half share in the property can be done in one of two ways, namely by way of a section 45(1) endorsement or by way of a formal transfer. The choice of method to transfer the share to you is decided by the conveyancer.
• A section 45(1) endorsement is an endorsement against the existing title deed of the property to the effect that you are entitled to deal with the property as if you had taken formal transfer of your deceased spouse’s half share.
• With a formal transfer a separate title deed for the half share is issued in your name. You will then hold the property under two title deeds, a half share by virtue of the existing title deed and a half share by virtue of the new title deed.
• The transfer of the half share, whether by way of a section 45(1) endorsement or formal transfer, will be subject to any conditions in your deceased spouse’s will, for example, should you remarry in community of property, the share transferred to you from your deceased spouse will not form part of the new estate to which you are party.  
• A rates clearance certificate from the local authority will need to be obtained and so it is important to keep up to date with the payments of the rates and taxes and water and electricity charges to the local authority.
• A levy clearance certificate (in the case of a sectional title unit) and homeowners clearance certificate, if applicable, will also need to be obtained.
• A transfer duty exemption certificate will need to be obtained from the South African Revenue Service (SARS). The transfer of the half share to you, either by a section 45(1) endorsement or formal transfer, is exempt from transfer duty in terms of section 9(1)(e)(i) of the Transfer Duty Act 40 of 1949 (Transfer Duty Act).
• Any bonds registered over the property will need to be cancelled.  

Should your deceased spouse not have bequeathed their share in the property to you, then you will only be entitled to deal with the half share in the property that you are entitled to by virtue of your marriage in community of property. Your deceased spouse’s half share will then need to be transferred to the legatee by way of a formal transfer.  

Out of community of property

Should you and your deceased spouse each own a 50% share in the property and your deceased spouse has bequeathed his/her 50% share in the property to you, you will then be entitled to take transfer of their 50% share in the property.

• The transfer of the 50% share can only be done by way of a formal transfer.  
• A section 45(1) endorsement is only available if the property is an asset in a joint estate.
• The transfer of the 50% share will be subject to any conditions in your deceased spouse’s will for example, should you remarry in community of property, the 50% share transferred to you from your deceased spouse will not form part of the new estate to which you are a party.  
• A rates clearance certificate from the local authority will need to be obtained.
• A levy clearance certificate (in the case of a sectional title unit) or homeowners clearance certificate, if applicable, will also need to be obtained.
• A transfer duty exemption certificate will need to be obtained from SARS. The transfer of the 50% share to you is exempt from transfer duty in terms of section 9(1)(e)(i) of the Transfer Duty Act.
• Any bonds registered over the property will need to be cancelled.  

Should your deceased spouse own the entire property and have bequeathed the property to you, you will be entitled to take transfer of the entire property by way of a formal transfer.  The requisite clearance certificate/s, the transfer duty exemption certificate will need to obtained and all existing bonds will need to be cancelled.

Should your deceased spouse have bequeathed the property to another, the executor will then transfer the property to that other person.

Sometimes a deceased spouse will have bequeathed the property to their children subject to a usufruct in favour of the surviving spouse. This means that the children take transfer of the property but the surviving spouse is entitled to live in the property until their death or until the time specified by the deceased spouse has elapsed.

If the deceased spouse instructed in their will that the property must be sold, the executor is authorised to sell the property and transfer the property to a third person.

WHERE A DECEASED SPOUSE HAS DIED INTESTATE

If your spouse has died without making a valid will, the property will be transferred in terms of the provisions of the Intestate Succession Act 81 of 1987 (Act), which states that:

• If the deceased is survived by a spouse and no descendants, then the surviving spouse is the sole heir and the property devolves in terms of section 1(1)(a) of the Act.
• If the deceased is survived by descendants only, then the descendants are the sole heirs and the property devolves in terms of section 1(1)(b) of the Act.
• If the deceased is survived by a spouse and descendants, the property will devolve upon the surviving spouse and descendants jointly in specific shares in terms of sections 1(1)(c)(i) and 1(1)(c)(ii) of the Act, as the case may be.

HOW DOES THIS APPLY TO THE DIFFERENT MATRIMONIAL REGIMES?

In community of property

On the death of your spouse you are automatically entitled to an undivided half of the property by virtue of your marriage in community of property in terms of the Matrimonial Property Act 88 of 1984.

Your spouse’s share will be transferred in accordance the provisions of the Act.

• If you are the sole heir, the transfer of the half share in the property can be done in two ways; by way of a section 45(1) endorsement or by way of a formal transfer, as discussed above in the paragraph dealing with testate succession.
• If you are not the sole heir, the transfer of the half of the property will be done by way of formal transfer to you and the other heirs.
• A next-of-kin affidavit, certified by the Master of the High Court will need to be obtained.
• A rates clearance certificate from the local authority will need to be obtained.
• A levy clearance certificate (in the case of a sectional title unit) or homeowners clearance certificate, if applicable, will also need to be obtained.
• A transfer duty exemption certificate will need to be obtained from SARS. The transfer of the half share is exempt from transfer duty in terms of section 9(1)(e)(i) of the Transfer Duty Act.
• Any bonds registered over the property will need to be cancelled.

Out of community of property

Should you and your deceased spouse each own a 50% share in the property, your deceased spouse’s 50% share in the property will be transferred in accordance the provisions of the Act. 

• The transfer of the 50% share in the property can only be done by way of a formal transfer.  
• If you are the sole heir, the 50% share in the property will be transferred to you.
• If you are not the sole heir, the 50% share in the property will be transferred to you and the heirs.
• A next-of-kin affidavit, certified by the Master of the High Court will need to be obtained.
• A rates clearance certificate from the local authority will need to be obtained, so it is important keep up to date with the payments of the rates and taxes and water and electricity charges to the local authority.
• A levy clearance certificate (in the case of a sectional title unit) or homeowners clearance certificate, if applicable, will also need to be obtained.
• A transfer duty exemption certificate will need to be obtained from SARS. The transfer of the 50% share is exempt from transfer in terms of section 9(1)(e)(i) of the Transfer Duty Act.
• Any bonds registered over the property will need to be cancelled.

Should your deceased spouse own the property in its entirety, the property will be transferred in terms of the provisions of the Act to you and the descendants, if any, by way of a formal transfer. A next-of-kin affidavit will need to obtained as well as the requisite clearance certificates and transfer duty exemption certificate.  Any bonds registered over the property will need to be cancelled.

Customary marriages

With effect from 20 September 2010, the Act has been amended by the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 to provide that from 20 September 2010 the estate of any person who died intestate will devolve in accordance with the Act but subject to customary law.

Terms to take note of:

• Customary law – means the customs and practices observed amongst the indigenous African people of South Africa and which form part of their culture.
• Descendant – this is a person who is not a descendant in terms of the Act but includes a person whom the deceased accepted as their own child in accordance with customary law.
• House – means, amongst other things, the property, rights and status which arise out of the customary marriage of a woman.
• Spouse – includes a partner in a customary marriage that is recognised in terms of section 2 of the Recognition of Customary Marriages Act 120 of 1988.

The property of the deceased person subject to customary law will be transferred as follows:

• If the deceased is survived by a spouse and no descendants, then the surviving spouse is the sole heir and the property devolves in terms of section 1(1)(a) of the Act. If there is more than one spouse or woman* the property is transferred equally to all the spouses or women.
• If the deceased is survived by descendants only, then the descendants are the sole heirs and the property devolves in terms of section 1(1)(b) of the Act.
• If the deceased is survived by a spouse/s (and/or women) and descendants, the property will devolve upon the surviving spouse/s (and/or women) and descendants jointly in specific shares in terms of sections 1(1)(c)(i) and 1(1)(c)(ii) of the Act, as the case may be.

As in the case of a marriage out of community of property:

• The property will be transferred by way of a formal transfer.
• A next-of-kin affidavit, certified by the Master of the High Court will need to be obtained.
• A rates clearance certificate from the local authority will need to be obtained.
• A levy clearance certificate (in the case of a sectional title unit) and/or homeowners clearance certificate, if applicable, will also need to be obtained.
• A transfer duty exemption certificate will need to be obtained from SARS. The transfer is exempt from transfer duty in terms of section 9(1)(e)(i) of the Transfer Duty Act.
• Any bonds registered over the property will need to be cancelled. 

Muslim marriages

Presently, South African law does not recognise Islamic marriages.

The Constitutional Court decided in Daniels v Campbell NO and Others [2004] (5) SA 331 (CC) and Fatima Gabie Hassam v Johan Hermanus Jacobs NO and Others [2009] ZACC 19 that where persons are married according Muslim rites they are to be considered as spouses for the purposes of inheriting in terms of intestate succession.

The property will accordingly be transferred in terms of the Act.

Long-term relationships

Until recently, if you were a partner in an opposite sex long-term relationship, you could not inherit in terms of the Act.

On 31 December 2021, the Constitutional Court held in Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51 that section 1(1) of the Act is unconstitutional and invalid insofar as it excludes the partner in a opposite sex long-term relationship. 

The Constitutional Court has referred the Act to Parliament to amend the definition of “spouse” to include a “partner in a permanent life partnership in which the partners had undertaken reciprocal duties of support”. The Act has at date of publication of this article not yet been amended.

The best way to avoid confusion and uncertainty is to make a will stipulating who inherits the property and other assets.

We have not discussed each scenario in detail, nor have we covered all possible scenarios, but have elected to give an overview of how property is dealt with and some of the requirements for surviving spouses and life partners. The conveyancer attending to the respective transfer will explain the process in more detail.

Written by Natasha Fletcher, Senior Associate in the Real Estate practice at Cliffe Dekker Hofmeyr