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Marital Systems: Know How Your Marriage Affects Your Estate
Your Marital system affects how you may dispose of your assets in your Will. In South Africa you may be married in terms of one of the following marital systems:
- In Community of Property: This is the default marital system in South Africa, it operates unless otherwise expressly excluded by the Spouses by means of an antenuptial contract. Spouses married in terms of this marital system, have no antenuptial contract and all assets of the married couple are jointly owned by the couple. Therefore, any assets or liabilities incurred will jointly affect both parties.
A testator married in community of property may only dispose of his half of the joint estate in his Will as the other half belongs to his spouse.
- Out of Community of Property without accrual: Where the couple marry with an antenuptial contract that expressly stipulates that they are married out of community without accrual, this means that each spouse during the marriage retains and grows their own individual estate.
As a result, the testator married in terms of this marital system can deal with their whole estate as they please in their Will as their spouse has no claim to the estate.
- Out of Community with Accrual: Where the antenuptial contract does not expressly exclude accrual, the accrual system will apply. What this means is that although the spouses retain their individual estates obtained prior to the marriage, upon death of the one spouse, the surviving spouse has a claim to the accrued amount of the deceased spouse’s estate.
As a result, the testator in his Will has limitations on how to dispose of the accrued value of the estate as the surviving spouse has a claim to it.
NOTE: Marriages after 1 November 1984 made out of community must expressly exclude accrual as it will automatically apply if not expressly excluded.
Key Takeaway: The type of marital system adopted affects how the estate will be dealt with upon the death of the testator. It is important that this is planned for and address in the Will.