Marriage and Your Estate: How Your Marital Regime Affects Inheritance in SA

Your Marriage Contract Is an Estate Planning Document

When South African couples get married, they either sign an antenuptial contract (ANC) or, by default, enter into a marriage in community of property. At the time, most couples are thinking about love, not estate duty calculations. But the choice made at the altar — or the lack of a choice — echoes through every aspect of estate planning for the rest of their lives.

Understanding how your marital regime affects your estate isn't just a technical exercise. It determines what happens to the family home, how much tax your estate pays, and what your surviving spouse actually receives when you pass away.

In Community of Property: Shared Everything

If you married without signing an antenuptial contract, you're married in community of property by default. This means you and your spouse own everything jointly — assets and debts alike — in a single combined estate, regardless of who earned or acquired what.

When one spouse dies, the joint estate is split in half. One half belongs to the surviving spouse by right (it was always theirs), and the other half forms the deceased estate. Only the deceased's half is subject to estate administration, estate duty, and distribution according to their will.

This has important implications. On the positive side, the surviving spouse automatically retains half of everything without it going through the estate process. If the deceased's half is bequeathed to the surviving spouse, the spousal deduction eliminates estate duty on that portion too.

On the negative side, because all assets and debts are shared, one spouse's financial problems become both spouses' problems. If one spouse is insolvent, the entire joint estate — including assets the other spouse brought into the marriage — can be claimed by creditors.

For will drafting purposes, remember that you can only bequeath your half of the joint estate. Any specific bequests (leaving a particular property to a particular person) must account for the fact that you only own 50% of that asset.

Out of Community of Property With Accrual

This is the most common marital regime for South Africans who sign an ANC. Each spouse maintains their own separate estate during the marriage, but at dissolution (death or divorce), the spouse whose estate grew less during the marriage has a claim against the estate that grew more.

The accrual system is designed to ensure both spouses benefit from the wealth generated during the marriage, even if one spouse earned significantly more. The calculation compares each spouse's estate growth from the date of marriage to the date of dissolution, and the spouse with the smaller growth is entitled to half the difference.

For estate planning, this means the accrual claim must be settled before the deceased estate is distributed. This can increase or decrease the dutiable estate depending on which spouse dies first and which estate grew more. It also creates a potential cash flow challenge — if the accrual claim is substantial, the estate may need liquid assets to settle it.

Out of Community of Property Without Accrual

This regime provides complete separation. Each spouse owns their assets independently, and neither has a claim against the other's estate growth. At death, the deceased's entire estate (not just half) is subject to estate administration and duty.

While this provides clean separation and protects each spouse from the other's debts, it can leave a non-earning or lower-earning spouse vulnerable. There's no automatic sharing of wealth accumulated during the marriage (beyond what the earning spouse chooses to share during their lifetime or through their will).

Customary Marriages

South Africa's Recognition of Customary Marriages Act (Act 120 of 1998) recognises marriages concluded under customary law. For marriages entered into after the Act came into effect (November 2000), the default position is marriage in community of property, unless a separate contract specifies otherwise.

This has important estate planning implications for couples in customary marriages who may not have considered the property implications. If you're in a customary marriage, it's worth confirming your marital property regime and ensuring your will accurately reflects your legal position.

How Divorce Affects Your Will

South African law provides an important safeguard when marriages end. Under Section 2B of the Wills Act, if you die within three months of your divorce being finalised and you haven't updated your will, any bequest to your former spouse is automatically revoked — your will is read as if your ex-spouse predeceased you.

However, after the three-month period, this protection falls away. If you still haven't updated your will, your ex-spouse could inherit exactly as your old will specifies. This is one of the most common and most preventable estate planning mistakes.

The message is clear: update your will immediately after any divorce. Don't rely on the three-month safety net — circumstances can change quickly.

Cohabitation: The Legal Gap

South Africa does not legally recognise life partnerships or cohabitation agreements in the same way as marriages. If you live with a partner without being married, the Intestate Succession Act does not recognise them as a spouse. This means if you die without a will, your partner inherits nothing, regardless of how long you've been together or what you've built jointly.

For unmarried couples, a will isn't just important — it's the only way to ensure your partner is provided for. Without one, your partner may be left with nothing while your assets go to blood relatives under intestate succession.

Blended Families: Navigating Complexity

Second marriages and blended families create some of the most complex estate planning challenges. You may want to provide for your current spouse while ensuring children from a previous marriage also inherit. Without careful planning, these goals can conflict.

A common scenario: you leave everything to your current spouse, trusting them to eventually pass it on to your children from your first marriage. But your spouse has no legal obligation to do so. They could remarry, change their own will, or simply spend the assets.

Solutions include using a testamentary trust that provides for your spouse during their lifetime with the remainder passing to your children, or splitting your estate between your spouse and children with specific bequests.

The key is explicit, written instructions in your will. Verbal understandings and assumptions have no legal standing.

Planning Around Your Marital Regime

Whatever your marital regime, the starting point is the same: understand your legal position and create a will that works within that framework.

Legacy Guardian® helps you navigate these complexities through a guided process that accounts for your marital status and property regime. Our will builder prompts you with the right questions based on your specific circumstances, ensuring nothing is overlooked.

Your complete estate plan — including information about your marital regime, assets, and wishes — is stored securely and can be updated whenever your circumstances change. Because in estate planning, understanding your marriage contract is just the beginning.

Plan Your Estate Around Your Circumstances — Start with Legacy Guardian®

This article is for educational purposes and does not constitute legal advice. Marital property regimes have complex legal and tax implications — consult a qualified professional for guidance specific to your situation. Legacy Guardian® provides digital estate planning tools for South African families.