The legal implications of your marital property regime will affect the treatment of assets should your marriage be dissolved through death. Before drafting your Will, it is therefore important to understand how your marital property system affects your property rights and your ability to distribute your assets. Your marital status, previous marital status, and current marital property regime can have far-reaching estate administration consequences which we have unpacked below.
Married in community of property
If you are married in community of property, you and your spouse share a joint estate. As a partner to an in community marriage, keep in mind that there are not two separate estates each totalling 50% of the joint estates. There is a single estate and, upon the death of the first-dying spouse, the whole estate must be wound up. You and your spouse are joint owners of all the assets in the estate regardless of whose name each asset is registered in. The exceptions to the joint ownership of assets include inheritances received by a spouse, or any payment made to a spouse for pain and suffering in terms of a Road Accident Fund claim. In terms of this regime, spouses are jointly and severally liable for all debt in the estate – irrespective of whose name the debt is registered in – including any debt incurred both before the date of marriage and during the subsistence of the marriage. In the event that you are the first-dying spouse, your executor will be required to settle all debt in your estate, including estate duty but excluding funeral and burial costs. Your surviving spouse will then have a claim for 50% of the net value of the joint estate. Thereafter, your remaining 50% share will devolve on your heirs either in terms of your Will or in terms of intestate succession.
Note: Estate administration complications can arise when the first-dying spouse bequeaths an asset in the joint estate to a third party. Remember, a spouse cannot bequeath assets belonging to the joint estate without permission from the other spouse. For instance, if you bequeath your car to a third party, complications can arise as a result of the fact that your surviving spouse is a joint owner of the vehicle.
Married out of community with the accrual
While largely considered the most equitable marital property regime, testators must remember to account for the operation of the accrual when developing their estate plans. The accrual system provides for the equal sharing of the profits made by each spouse during the course of the marriage and, when the marriage is dissolved, the accrual must be calculated and apportioned accordingly. When entering into their ante-nuptial contract, spouses are free to set out the financial consequences of their marriage and in doing so are free to include or exclude any assets that they come into the marriage with. Each spouse is required to declare the commencement value of their estate in the ante-nuptial contract which will be used as the basis for determining the accrual in the event of death. While the marriage lasts, each spouse retains full control of their own estate. On the death of the first-dying spouse, the net value of each estate is calculated and the spouse with the larger estate must transfer half of the difference to the spouse with the smaller estate. As such, understanding the effects of the accrual on your estate is critical to ensure that your estate plan is workable. For instance, if your estate is found to be the larger of the two in the event of your death, your surviving spouse will have a claim against your deceased estate for her share of the accrual.
Note: Let’s take a situation where, as the first-dying spouse, your estate has greater value. In terms of your Will, you bequeath your holiday home to your sister. However, your surviving spouse has a claim for 50% of the difference between the two estates, and there is insufficient liquidity in your estate to pay her share. In such circumstances, your executor may be required to realise some of your assets in order to pay what is owing to your surviving spouse which, in turn, could affect the financial legacy you intended for your sister.
Married out of community without the accrual
While this form of marital property regime is the most simplistic one when it comes to estate administration, it can also be highly inequitable. When choosing to get married according to this regime, spouses must expressly exclude the accrual system in terms of their ante-nuptial contract, but should be advised to fully understand the implications of doing so beforehand. If you and your spouse are married in such a manner, the consequences in the event of death are the same as if you are unmarried. This is because the assets of each spouse are kept totally separate, and each spouse has full right of disposal over their respective assets. Their respective estates remain totally separate during the subsistence of their marriage, and there is no accrual. As such, when winding up the estate of the first-dying spouse, the estate is administered in complete isolation from the estate of the surviving spouse. In situations where one spouse has been able to amass wealth while the other has been unable to as a result of child-rearing or household responsibilities, this form of marital regime can be particularly prejudicial as the surviving spouse will have no claim against the assets of the deceased. She would, however, be entitled to claim for reasonable maintenance in terms of the Maintenance of Surviving Spouse Act.
Note: If the surviving spouse is owed money by the first-dying spouse in terms of a valid loan agreement, the surviving spouse will be required to lodge a claim against the deceased estate and such claim will rank the same as for an ordinary creditor.
Married according to customary law
Where a couple is married in accordance with the Recognition of Customary Marriages Act, they are automatically considered to be married in community of property. If they wish to be married out of community of property, they are required to enter into an ante-nuptial contract prior to the ceremony in which they must indicate whether or not the accrual system is to apply to their marriage.
Note: In the case of a polygamous marriage, the husband is required to bring a High Court application in order to have a written contract setting out their marital property regime approved.
If you are unmarried and have never been married, as the sole owner of your assets and the only person responsible for your debt, your estate administration would be relatively simple. Complications could, however, arise where you are co-owner of property with another person or persons. Regardless of your marital status, it is always advisable to have a valid Will in place to ensure that your loved ones know your intentions in the event of death.
Note: If you are unmarried but living with your life partner, dying without a valid Will in place could inadvertently leave them financially prejudiced.
If you are divorced, you will need to take into account any terms of your divorce order relating to the division of assets in the event of your death, or obligations in respect of maintenance. Keep in mind that the terms of your divorce order are binding on your estate and will be taken into account by your executor when administering your estate.
Note: In terms of Section 2B of the Wills Act, you effectively have a window-period of three months following the date of your divorce in which to update your Will. If, after the expiration of three months, you have still not updated your Will and your ex-spouse is a beneficiary of your Will, it will be deemed that you intended for your ex-spouse to benefit from your Will.
A religious marriage is one entered into in terms of a religion such as the Islamic or Hindu, and such partners are not considered to be spouses when it comes to marital property. There is no community of property in a religious marriage meaning that such a union is treated as an out of community marriage with no accrual system.
Note: In terms of the Income Tax Tact, partners to a religious marriage fall within the definition of ‘spouse’. This is because the Act determines that the spouse of a taxpayer includes anyone in a union recognised in accordance with the tenets of any religion.
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