You can get married in or out of community of property. If you choose to marry out of community of property you would conclude an antenuptial contract (‘ANC’) with or without accrual.
If you choose the accrual option, when the marriage ends (by death or divorce) one-half of the difference in value in the party’s estates automatically vests in the party whose estate shows a smaller accrual, before effect is given to any testamentary disposition, or donation.
Let me illustrate what this could mean.
Jack and Jill get married by ANC with accrual. At the time they are young and have no assets. After a few years, Jill owns the family home but has very few other assets. In her will she leaves her the home to Jack and the residue of her estate to the SPCA. Jack, on the other hand has amassed a substantial estate of R10m.
Sadly, Jill dies. On her death, the home is worth R2m. To his dismay, Jack learns that because his assets are valued at R8 million more than his wife’s assets, the accrual system obliges him to transfer half of the difference of the accrual (i.e. half of R8m, namely R4m) to his wife’s estate. Those assets would be dealt with in accordance with Jill’s will and would go to the SPCA!
Jack did not realise that, at the dissolution of the marriage through death, one-half of the difference in the value of the two estates, namely R4 million, would devolve upon Jill directly because of the accrual.
Couples whose marriages are subject to the accrual system need to give careful consideration to the impact the accrual will have before the terms of their wills are given effect to.
The person drawing up your will must know how you and your spouse are married so he or she can factor this into the will and you are not later taken by surprise.
If you and your spouse agree you can also amend the consequences of the marriage with accrual. This is perfectly binding as long as it does not prejudice the claims of creditors.
E.g. Jack may wish to exclude his shareholding in his now very profitable company from the application of the accrual system. To do this, the parties would agree to bring about an alteration in the patrimonial relationship by way of variation of the ANC, which does not have the sanction of the court and which is not registered, in the form of a donation from the estate of Jill to Jack. This would be in the form of an agreement signed by them.