Both parties are still registered as co-owners of the property.
By Rick Briers-Danks 22 Sep 2021 00:01
Does a divorced spouse benefit from the sale of a property of a deceased ex if the property is still registered in both their names at the time of death? That is, they are still registered as co-owners of the property at the time of the ex’s passing.
I believe the answer to your question lies in the terms of the divorce agreement. Let’s assume that a divorce agreement was finalised prior to the deceased’s death and the Consent Papers have been signed by all parties.
Let’s firstly assume that the couple agreed in their divorce agreement that the property would be sold, and they would share the proceeds. In this case, the surviving ex-spouse would still benefit from the sale of the property, in the same way as if the deceased was still alive. The same would apply if the property isn’t mentioned in the Consent Papers, but the ex-spouses agreed to sell it and split the proceeds, or the surviving ex-spouse and the executor have agreed to sell the property.
In another scenario, let’s assume the ex-spouses agreed in the divorce agreement that the property would be transferred in full to the deceased spouse. But, for whatever reason, the transfer hadn’t happened yet by the time the spouse died.
The executor of the deceased’s estate would step into the deceased’s shoes and act in their place. In terms of the divorce agreement, their estate would be entitled to claim the full value of the property as an asset. The Consent Papers would supersede the ownership as per the title deed and the surviving ex would still be bound by the Consent Papers. If the executor decides that the property should subsequently be sold, or if the spouses agreed to sell it and for the proceeds to be paid solely to the deceased, the surviving ex will not benefit.
The ex-spouse could of course still be named as a beneficiary in the deceased’s will, in which case they might still receive some of the proceeds.
Here one must look at when the deceased signed their will and how much time has passed between the divorce being finalised and their death.
The Wills Act has a specific provision (Section 2B) for the case where someone dies within three months after having been divorced and if they haven’t updated their will since the divorce. In this case, the former spouse will not inherit in terms of the will – not even if a bequest is made to them and the deceased wanted them to inherit despite the divorce. To avoid complications in this situation, there needs to be a proviso in the will that specifies differently.
Section 2B doesn’t apply if the deceased has died more than three months after their divorce. The will would stand as is and the former spouse would inherit as per the will if they are mentioned as a beneficiary.
In all cases, the deceased’s heirs and their former spouse should ensure that the executor is provided with the Divorce Order and the Consent Papers.
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