Till death do us part – the effect your marriage regime has on estate planning | Legal Articles

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Till death do us part – the effect your marriage regime has on estate planning

When couples decide to get married, they are usually not thinking about death and what might happen once one of them sadly passes away. However, in reality choosing a marriage regime is very important for estate planning. Here’s what you need to know when considering the effect your marriage regime might have on estate planning.

Antenuptial contracts Cape Town - attorneys CT

Marriage in community of property

If you marry without an antenuptial contract you will by default be married in community of property. Although one of the more popular marital regimes, being married in community of property can limit an individual’s ability to deal with his or her estate in a Will.

Both spouses own everything in equal shares, therefore a joint Will is common in these situations. The problem with a joint Will is that, at the death of the first dying spouse, the surviving spouse may reject the joint Will.

The consequences of this being that the surviving spouse will retain his or her half of the assets. Parties can protect themselves by entering into an ante-nuptial contract which excludes certain assets from the joint estate.

Donations and inheritance may also be excluded should they be subject to a condition expressly excluding it from the joint estate.

Marriage out of community of property with accrual

When it comes to Marriage out of community of property with accrual, parties would have executed an ante-nuptial contract. If the accrual system is not expressly excluded in the contract, the marriage will be subject to the accrual system. This means that the spouse with the smaller accrual in wealth during the subsistence of the marriage will have a claim against the spouse with the larger accrual.

For example, if the first dying spouse has the smaller accrual then their estate will have a claim against the surviving spouse. Legislation excludes all inheritance and donations received during the marriage from the accrual. 

Marriage out of community of property without accrual

This is the most simplistic regime when it comes to estate planning. In this instance each spouse retains possession of all assets with which they entered the marriage. there is usually no accrual claim and parties are free to dispose of their assets as they wish.

In certain circumstances the surviving spouse may have a maintenance claim against the estate of the first dying.

Need assistance with planning your happily ever after?

Here at Bailey Haynes Inc. we offer top-notch family law services. Our attorneys in Cape Town are skilled and proficient experts who can assist you with all aspects of marriage, from beginning to the end.

Contact us for expert legal assistance.


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