18/05/2017 13:39 SAST | Updated 18/05/2017 13:39 SAST

The Wife, The Other Woman, And The Deceased Husband’s Estate -- What Happens?

So your dead husband has nominated his mistress as the sole beneficiary. What do you do now?

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Imagine this scenario: your husband dies, and in the middle of your grieving process, you find out he has nominated another person to inherit all his retirement benefits. He has gone as far as indicating the so-called other individual as his spouse, even though, at least as far as you know, he was only legally married to you.

Such cases are not unique in South Africa, and they cause frustrating delays in, for example, pension fund payouts, while the case for the other person is still deliberated on.

While legally in South Africa a partner outside of a marriage is not entitled to any of the deceased's assets, they could still benefit legally if they are named in the will, in a life insurance policy, or a retirement.

  1. If they are listed as a beneficiary on the husband's will

David Bekker, of the Law Society of South Africa tells HuffPost SA that if the will is drawn up according to the Wills Act and it can be proven that the deceased wrote the will under no compulsion and of a sober mind, generally whomever the deceased has listed, whether a partner out of wedlock or someone else, is the legal beneficiary of the estate. It can be contested though, because it goes through probate –- which is proof issued by a court that the will is legally valid.

  1. If they are listed as a beneficiary on a life insurance policy

Similarly, when anyone nominates a beneficiary on a life policy, the insurer will pay the proceeds of the policy directly to the nominated beneficiary, whether it's a relative, a partner, or an organisation. It can also be contested, but legal experts say it's more difficult to contest life insurance because it doesn't go through probate.

  1. If they are listed as a retirement fund benefit nominee

This one is a bit tricky because the fund trustees do not necessarily need to give any shares to the nominees. According to the Pension Fund Act, the board must consider all people who depended on the deceased, be it a legal spouse, children, parents and others first. But another partner is within their rights to prove that they were financially dependent on the deceased. They would need to bring proof of this for consideration by the trustees.

Lastly, it's important to mention that the law looks out for children who can be proven to have been fathered by the deceased husband, whether they were known or not, especially where retirement fund benefits are concerned.