How your marital regime affects estate planning

by Christel Botha - Alexander Forbes Fiduciary Services Manager

administering your estate: it matters how you are married

Before you tie the knot, it is important to understand the effect of your marital regime on estate planning and what the law says about leaving your possessions to persons other than your spouse.

In South Africa, there are a number of choices when it come to a marital regime. The following are the most common.

“What is mine is yours, and what is yours is mine”

If you are married in community of property (ICOP), both your and your spouse’s assets will form part of your estate and your spouse will automatically, by law, be entitled to 50% of the combined assets. Where your spouse is not the nominated heir or the residual heir, only 50% of your assets can be bequeathed in terms of your will.

For example, you bequeath your fixed property in your will to your daughter. She will only be able to inherit 50% of the property in terms of your will, as your spouse is entitled to the remaining 50% of the property in terms of the marriage ICOP.

“What’s mine is mine and what’s yours is yours, and should we ever divorce, I keep my stuff and you keep yours.”

You can be married out of community of property with or without the accrual system.

If you are married out of community of property without the accrual system

This is the most uncomplicated marital system to work with in your will and estate; your assets remain your own, and your surviving spouse has no claim on these assets.

In this situation, you may, for exampe, bequeath your fixed property to your son and he will inherit 100% of the property in terms of your will.

If you are married out of community of property with the accrual system

In terms of this marital regime, you can bequeath your assets in any way you please, but the growth of your assets after you got married (accrual) has to be taken into consideration. Both spouses in marriage gain an equal share of asset growth from the start of the marriage until it comes to an end through death or divorce.

When signing the ante nuptial contract, each party has to declare their assets before they enter the marriage, as these assets or asset values will be excluded from any accrual claim at the end of the marriage.

The accrual claim is calculated on the growth of the combined assets since the start of the marriage. The party with the lesser growth in assets or asset values will have a claim against the other spouse. Each party must therefore provide in their estate plan for any possible accrual claim expected when the marriage comes to an end.

When reporting the estate to an executor, a list of both spouse’s assets and asset values are required in order to calculate the accrual claim.

Shariah law (Islamic marriages)

These marriages are a specialised field and inheritances are prescribed in terms of this law.

If your marriage is governed by the laws of another country, find out what effect that marital regime has on your assets and liabilities. In this way, your will can be drawn up accordingly, allowing your assets to be distributed to your heirs in accordance with your wishes

This article was published on the Maya on Money Website on 14 February 2021

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