Legal question: Can a person disinherit a spouse? Edrick Roux LLB (UP) is a dispute resolution specialist and answer this question as follows: It is clear that a testator has the ability to disinherit a spouse, although in most cases there will be a claim for maintenance brought against the estate, and the testator will still be acting in his or her rights if he or she disinherits his or her spouse. Despite this exercise of his or her rights, personal obligations generally triumph over personal freedom, as can be seen from the existence of the duty of support. The matrimonial property regime of the parties will significantly influence the exercise of freedom of testation. A marriage in community of property will generally allow more freedom in a will, whereas a marriage out of community of property will generally lead to lessor freedom in the will. The presence or absence of the accrual system will also influence the situation. Whether this will be harmful or beneficial to the estate depends on which party had the greater accrual. It is in rare circumstances only that an individual will be able to leave a spouse or a child with nothing when he or she passes on, but it would seem that it is possible to come extremely close to doing so by not providing for them in the will, despite the availability of maintenance claims. If the right combination of factors are present that has the effect of excluding a maintenance claim, then the testator can distribute his assets as he pleases.
Posted on: Fri, 22 Nov 2013 09:25:03 +0000
Trending Topics
Recently Viewed Topics
© 2015