by Tobias | 08.May.2017 | Estate Planning
WHEN THERE WAS A SECOND MARRIAGE Can the inheritance of children from the first marriage be protected? By Hein Klokow, Estate Specialist The question is sometimes asked: Can a spouse from a second marriage walk away with all the assets from your estate, even though you have bequeathed everything to your children from the first marriage? In the normal scheme of things, it might happen that a person (the testator) marries again after the death of his first wife. This might cast doubts in the minds of his children. They might wonder what might happen to all the assets that their late mother and testator worked so hard for all their lives. The testator might try to ease their minds by marrying out of community of property, without the right of accrual. He might even go further and make the children his only inheritors in his will. In some cases, it is also the second wife’s second marriage and she usually had already inherited assets from her late husband. The question, however, remains whether the children will remain his exclusive beneficiaries to the exclusion of his new spouse. The answer is No! The new spouse will be acting within her rights in terms of the Maintenance of Surviving Spouse Act if she instigates a claim for maintenance against the estate of the testator. Such a claim might liquidate the estate of the testator so that nothing remains for the other ‘would-be’ beneficiaries. The reason is that all the liabilities in the estate (including the maintenance claim) must be paid out first, and only then will the balance be paid...
