Married With an Antenuptial Contract: Estate Implications on Death

Two very different kinds of ANC

An antenuptial contract means the marriage is out of community of property, so there is no joint estate and each spouse keeps their own. But there are two versions of that and they produce completely different outcomes on death.

• Out of community WITH accrual: each spouse owns their own assets during the marriage, but on dissolution the growth in the two estates is shared. This is the default for marriages out of community entered into on or after 1 November 1984, unless the accrual system is expressly excluded in the ANC.
• Out of community WITHOUT accrual: complete separation. Nothing is shared. This applies where the ANC expressly excludes accrual, and to marriages out of community entered into before 1 November 1984, since the accrual system did not exist before the Matrimonial Property Act 88 of 1984.

Read the actual contract. Do not go by what anyone remembers being told at the time. The ANC is registered at the Deeds Office and a copy can be obtained from there or from the notary who drew it.

How the accrual claim works on death

The accrual of each estate is the difference between its net value at the end of the marriage and its net commencement value. The spouse whose estate showed the smaller accrual has a claim against the other for half the difference.

On death that claim runs in whichever direction the numbers point.

• If the deceased's estate grew less, the deceased's estate has a claim against the surviving spouse. That claim is an ASSET of the estate and increases what the heirs receive.
• If the surviving spouse's estate grew less, the survivor has a claim against the deceased estate. That claim is a DEBT of the estate. It is settled as a creditor's claim before anything is distributed to heirs.
• The claim is calculated first, before the will or the intestate rules are applied. It is not an inheritance and it is not affected by what the will says.
• Commencement values are adjusted for the change in the consumer price index between the date of marriage and the date of dissolution, so a commencement value recorded decades ago is not used at its face amount.

What is left out of accrual

• Anything the ANC itself excludes. Couples often list specific assets, and those are simply outside the calculation.
• An inheritance, legacy or donation received by a spouse from a third party during the marriage, together with its proceeds, unless the spouses agreed otherwise.
• Donations between the spouses themselves.
• Damages received for a non-patrimonial loss, such as pain and suffering.

The proof burden is real. If a spouse claims an asset came from an inheritance and is therefore excluded, they need to be able to show it. Keep the paper trail during the marriage, not after a death.

Where these estates go wrong

• The ANC cannot be found. Get a copy from the Deeds Office rather than assuming the marriage was in community by default.
• The commencement value was recorded as nil. If a spouse in fact brought assets in but the contract records nothing, those assets count as growth during the marriage and are shared.
• Assuming an ANC means the surviving spouse gets nothing. It does not. The spouse still inherits under the will or the intestate rules, still has an accrual claim if applicable, and still has a maintenance claim under the Maintenance of Surviving Spouses Act 27 of 1990.
• Treating the accrual claim as an inheritance. It is a claim, calculated and settled before distribution, and it does not attract estate duty in the deceased's estate the way an inheritance to a non-spouse would.

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