If I am married in community of property, what can I leave in my will?

A client asked: What are the implications when folks get married in community of property after a property was purchased in any one’s name, draw up a will and one passes away?

If a couple get married in community of property, they share equally in the assets and liabilities of their joint estate (whether acquired or incurred before or during the marriage).

So, if the husband owned a property before the marriage, on death or divorce, the wife becomes entitled to half the net value of the joint estate (i.e. half of all their combined assets less all its joint liabilities).

What that means is that a spouse can only leave his or her half share of the joint estate, in a will. If a will says “I leave my estate to my mother”, “my estate” means his or her net half of the joint estate.

When is a grandparent liable to maintain a grandchild?

A grandparents’ duty to support their grandchild.

These are the legal principles:

·         Both parents are jointly obliged to support their child on his birth. This common-law obligation is called the ‘the parental duty’ to support children, proportionately to their respective means. In other words, the parent that earns more, would pay more child maintenance;

·         The duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage;

·         A parent’s duty to support ends when the child becomes self-supporting (even if the child becomes a major), dies or marries;

·         If parents are not able to support their children, the duty to support falls on paternal and maternal grandparents. The support is based on the child’s needs and the grandparents’ ability to pay;

·         Paternal grandparents have a duty of support towards a grandchild despite the child being born out of wedlock;

·         When a parent dies, his or her obligation to support the child will not cease, but will lie against the estate of the deceased parent;

·         Where there are not enough funds in the deceased parent’s estate to provide for the child’s support, the duty to support will fall upon the child’s maternal and paternal grandparents, jointly;

·         If the spouse cannot support his wife, her parents may be called on to support her, but they have a right to recover their maintenance from the spouse;

·         The duty to support may also cease if the child is ‘guilty of a cause of ingratitude towards him from whom he desires maintenance such that he could even be justly disinherited on account of it’. This still must be ruled upon by our courts.