Most South Africans know that a marriage contract determines how assets are shared between spouses during the marriage. What fewer people realise is that your marriage contract also has profound implications for what happens to your estate when you die.
Understanding the connection between your matrimonial property regime and your estate planning is not optional — it is essential.
The Three Matrimonial Property Regimes in South Africa
South African law recognises three ways in which spouses can be married with respect to their property:
- In community of property — the default position if no antenuptial contract (ANC) is signed before the marriage.
- Out of community of property without the accrual system — requires an ANC.
- Out of community of property with the accrual system — requires an ANC.
Each one affects your estate differently.
1. In Community of Property
If you married without signing an antenuptial contract, you are automatically married in community of property. This is the most common matrimonial regime in South Africa by default — and the one with the most significant estate planning implications.
What it means during your lifetime
In community of property means that both spouses share a single, joint estate. All assets and liabilities — including those brought into the marriage and those acquired during it — belong equally to both spouses (50/50), regardless of who earned the money or whose name the asset is in.
What it means when you die
When you die in community of property:
- Your estate consists of only your 50% share of the joint estate — not the full value of all assets.
- Your surviving spouse retains their 50% share automatically — it does not form part of your deceased estate.
- Your 50% share is what your executor administers, what your heirs inherit, and what estate duty is assessed on. Your spouse is then, if you do not have a will, also entitled to a share of your remaining 50%.
This sounds straightforward, but the practical reality is more complex:
- Joint assets must be valued — the full value of every asset must be determined, then halved.
- Joint debts are also split — liabilities follow the same 50/50 split.
- Your executor cannot deal with 100% of a property — only your 50% share, which means a surviving spouse may need to agree on what happens to assets held jointly.
- The surviving spouse must “consent” to certain transactions — because they own 50% of every asset, even during the administration process.
Estate duty implications
Estate duty is levied on your 50% share of the estate (after deductions). The R3.5 million abatement applies per person. Assets left to a surviving spouse are exempt from estate duty under Section 4(q) of the Estate Duty Act — this exemption is significant for community of property marriages where everything passes to the survivor.
2. Out of Community of Property Without Accrual
If you signed an antenuptial contract without the accrual system, each spouse has their own separate estate throughout the marriage. What you own is yours. What your spouse owns is theirs. There is no automatic sharing.
What it means during your lifetime
Each spouse accumulates assets and liabilities entirely independently. A business, a property, or a portfolio registered in your name belongs to you alone — your spouse has no claim to it.
What it means when you die
When you die out of community of property without accrual:
- Your estate consists of everything in your name — there is no 50% reduction.
- Your surviving spouse has no automatic claim to any of your assets beyond what your will provides.
- Your executor administers your full estate — every asset registered in your name.
This regime gives each spouse the clearest “ownership” picture, which simplifies estate administration. However, it also means that if you have not made adequate provision for your spouse in your will, they may receive nothing — particularly if the marriage is shorter and assets were accumulated largely in one spouse’s name.
Estate planning implications
- A well-drafted will is critical — your spouse has no default claim on your assets.
- Consider what provision is appropriate given your financial circumstances.
- If your spouse is financially dependent on you, life insurance and careful will drafting become even more important.
3. Out of Community of Property With the Accrual System
The accrual system is a popular middle ground. Each spouse keeps their own separate estate during the marriage (as in the “without accrual” regime), but when the marriage ends — whether by death or divorce — the spouse whose estate grew less during the marriage has a claim against the other for half the difference in their respective accruals.
Understanding the accrual calculation
The accrual is the growth in each spouse’s estate during the marriage — from the start date to the end. The commencement values (what each spouse was worth when they married) are set out in the antenuptial contract.
Example:
Spouse A: Started with R200,000, ends with R3,000,000 → accrual = R2,800,000
Spouse B: Started with R100,000, ends with R800,000 → accrual = R700,000
Difference: R2,800,000 − R700,000 = R2,100,000
Spouse B’s accrual claim: R1,050,000 (half the difference).
What it means when you die
On your death, the accrual claim must be calculated before your estate can be distributed:
- Your executor calculates both spouses’ accruals as at date of death.
- If your spouse has a claim against your estate, it is settled as a debt of the estate before distribution to heirs.
- The remaining estate then passes to heirs in terms of your will.
This means the accrual claim reduces what is available for your heirs. In estates where one spouse accumulated significantly more wealth, the accrual claim can be substantial.
Estate duty implications
The accrual claim payable to a surviving spouse is treated as a deduction from your dutiable estate before estate duty is calculated. This can reduce the estate duty liability significantly.
Comparing the Three Regimes: Estate Planning Summary
| Community of Property | ANC Without Accrual | ANC With Accrual | |
| Your estate includes | Your 50% share of joint estate | Everything in your name | Everything in your name (less accrual claim) |
| Surviving spouse’s automatic share | 50% of all joint assets | Nothing automatically | Accrual claim (if applicable) |
| Administration complexity | Moderate — 50% splits required | Simplest | Moderate — accrual must be calculated |
| Estate duty exposure | On your 50% (Section 4(q) exemption for spouse) | On full estate (Section 4(q) for spouse) | On estate less accrual claim |
| Importance of a will | High | Critical | High |
Why You Need to Review Both Your Marriage Contract and Your Will
Your marriage contract and your will work together. A change in one may require a review of the other:
- If you are in community of property, your will only covers your 50% share — ensure it is drafted to reflect this.
- If you are out of community without accrual, ensure your will makes adequate provision for your spouse.
- If you have the accrual system, ensure your executor knows how to calculate and settle the accrual claim.
Frequently Asked Questions
Can I change my marriage contract after we are married?
In limited circumstances, yes. A postnuptial contract can be entered into with the consent of both spouses and court approval. This is not a simple process and requires legal assistance. It cannot be done unilaterally.
Does community of property mean my spouse inherits everything?
Not automatically. Your spouse already owns 50% of the joint estate. What happens to your 50% depends on your will. If you die without a will (intestate), the Intestate Succession Act determines the distribution — which may or may not leave everything to your spouse, depending on whether you have children.
Does my marriage contract affect my retirement fund?
Your retirement fund death benefit is governed by Section 37C of the Pension Funds Act and is generally not part of your deceased estate — regardless of your marriage contract. Your spouse’s accrual claim and inheritance are separate from the pension fund distribution.
What if my spouse and I both die at the same time?
This is a situation that a well-drafted will must address. In community of property, it raises complex questions about which half of the joint estate is distributed by which estate. Your attorney can draft provisions to address this scenario.
Understand Your Regime Before You Plan Your Estate
Your marriage contract is the foundation on which your estate plan is built. Executor Law works with clients to review the interaction between their matrimonial property regime and their will, ensuring nothing is left to chance.