In case of a marriage in community of property, one half of the estate belongs to the surviving spouse and, although it forms part of the joint estate, will not devolve according to the rules of intestate succession. If the deceased leaves behind a spouse and children (including adopted children), then both spouse and children will inherit a portion, known as a child's share. In terms of the relevant Act, the surviving spouse is entitled to receive R250 000 or a child’s share, whichever is the higher.
To calculate the child’s share, one must divide the value of the deceased estate by the number of children plus one (the surviving spouse). For example, the value of the deceased wife's estate is R3 million and she leaves behind a husband and two children. The estate would therefore need to be divided by three, and each heir would therefore receive R1 million (being greater than the R250 000 child’s share).
If the parties were married in community of property and their combined estate is valued at R1.4 million. On the wife's passing, she leaves behind her husband and 3 children. As they are married in community of property, the surviving spouse will first receive his half-share of the estate, being R700 000. The remaining R700 000 would then be divided by 4 (Surviving spouse plus 3 children), being R175 000. Being the greater amount, the surviving spouse is entitled to the child’s share of R250 000, while her 3 children will each receive R150 000.
Therefore it is very important to have a valid Will.