THE NEED FOR PROPER ESTATE PLANNING IN MARRIAGES WITH THE ACCRUAL SYSTEM

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Written by Lana Roux Attorneys

Your Antenuptial Contract (ANC) is one of the most important documents that you will sign before getting married, as it will regulate the financial consequences of your marriage.

The Matrimonial Property Act 88 of 1984 affords spouses the option of incorporating the accrual system in their ANC (this is in fact the default position as the accrual system will automatically apply unless expressly excluded in the ANC). The accrual system provides a means for spouses to share in what they have built up during the marriage, which in theory makes it a fair and equitable matrimonial property regime. In the absence of proper, updated estate planning however, the accrual system can have extremely detrimental consequences when the marriage is dissolved by death or divorce.

When entering into their ANC, spouses can choose to exclude any asset from the accrual, e.g. pension funds, jewelry, fixed property, etc. The following assets will automatically be excluded from the accrual unless the spouses agree otherwise:

  • Delictual damages for non-patrimonial loss;
  • Inheritances, legacies and donations;
  • Donations between spouses.

Once the spouses have indicated in the ANC which assets to include or exclude from the accrual, a net commencement value of their respective estates should be given. These values will be used to determine the accrual of their estates upon dissolution of the marriage. If no net commencement value is given, it shall be deemed to be zero.

During the subsistence of the marriage, there is a complete separation of estates and no accrual sharing. It is only upon dissolution of the marriage, that the right to share in accrual becomes enforceable. The accrual is calculated by subtracting the amount of accrual of the spouse whose estate has shown the smaller accrual from the amount of accrual of the spouse whose estate has shown the larger accrual. The spouse with the smaller accrual amount is then entitled to share in half of the difference between the two accrual amounts.

The need for proper estate planning can be explained with reference to the following scenarios:

Steve and Samantha are married out of community of property with the accrual. Their net commencement values were zero. Both have children from their first marriages.  Steve’s estate is currently valued at R15 million, including business interests of R5 million, the primary residence which is in his name of R5 million and retirement annuity of R5 million. Samantha has jewelry valued at R2 million and a retirement annuity of R4 million. In terms of Steve’s will he has bequeathed his entire estate to his children from his first marriage and has nominated his children as beneficiaries on his retirement annuity. Samantha has bequeathed her entire estate to her only child from her first marriage.

Scenario 1: Steve is the first-dying spouse

The accrual would be calculated as follows:

The value of Steve’s estate minus the value of Samantha’s estate: R15 million minus R6 million = R11 million divided by 2 = R5.5 million.

Samantha therefore has an accrual claim against Steve’s estate in the amount of R5.5 million. This can create a problem when winding up Steve’s estate as he has bequeathed the primary residence of R5 million and his business interests of R5 million to his children. As an accrual claim is a preferent claim, the deceased estate is obligated to pay Samantha her share of the accrual before distributing any assets to Steve’s heirs.  This could result in the executor having to sell Steve’s business interests and/or the primary residence which is not what Steve intended in his will.

Scenario 2: Samantha is the first-dying spouse

In this case, Samantha’s deceased estate has a claim against Steve for R5.5 million. The situation is again not ideal in that Steve may be forced to sell some of his assets and as he cannot access his retirement annuity, he would need to sell his business interests and/or primary residence in order to pay out the accrual claim.

To avoid predicaments like these it is of the utmost importance that spouses not only have valid, updated wills in place, but that their estate planning is also revised regularly.

We not only specialize in Antenuptial Contracts, but also assist with Wills and Estate Planning.

Contact:

Lana Roux

073 243 1970

lana@lrlaw.co.za

www.lanaroux.co.za

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