Lewenspolisse, huwelike binne gemeenskap van goed en die berekening van boedelbelasting

Abstract

The treatment of life insurance policies in deceased estates and the effect thereof on marriages in community of property is the cause of various problems for executors. In terms of section 3(3) of the Estate Duty Act 45 of 1955 life insurance policies are deemed to be assets of the deceased. Consequently life insurance policies are reflected in the estate duty addendum of the deceased estate. Life insurance policies however are not always reflected in the liquidation account of the deceased estate as assets, notwithstanding the fact that life insurance policies are deemed to be assets for estate duty purposes. In this regard a distinction should be made between two situations: firstly where life insurance policies are reflected in the liquidation account of the insured estate and secondly where life insurance policies are not reflected in the liquidation account of the insured. For spouses married in community of property this creates a problem especially when you keep in mind that life insurance policies are in many instances a person's biggest monetary asset. When life insurance policies are reflected in the liquidation account of the insured, the surviving spouse has a claim on half of the policy proceeds. When life insurance policies are not reflected in the liquidation account of the insured, the surviving spouse has no claim on the policy proceeds. The problem that arises in this regard is that there is no certainty as to what extent life insurance policies should be included in the calculation of estate duty, and how these policies must be reflected in the estate of the deceased. This uncertainty has been perpetuated by courts. This research will illustrate how the courts came to different conclusions where the facts were more or less similar.