Jainal Narsai, Fiduciary Specialist at Alexforbes
Women’s Month is a time to celebrate strength, independence and empowerment. But being empowered also means understanding how your legal and financial choices can affect the people you love. One important way to do this is by having a clear, up-to-date Will.
Marriage and divorce can change what happens to your money, property and belongings when you die. That is why it is important to understand how your marriage is structured and to update your Will when your personal circumstances change.
In South Africa, there are three main ways couples can be married: in community of property, out of community of property with accrual, and out of community of property without accrual. Each option affects your estate differently, so it is useful to know what applies to you.
Marriage in community of property
If you are married in community of property, you and your spouse share one joint estate. This means your assets and debts are combined. If one spouse dies, the surviving spouse is usually entitled to half of the joint estate because of the marriage.
Some people think this means they do not need a Will. That is not true. Your Will still matters because it explains what should happen to your half of the joint estate after you die.
If there was no antenuptial contract before a customary marriage, the marriage is generally treated as in community of property. Changing this later usually requires a court application and the court must be satisfied that there are good reasons for the change and that creditors will not be unfairly affected.
Marriage out of community of property with accrual
Many couples marry out of community of property with the accrual system. This means each spouse keeps ownership of their own assets during the marriage, but they share in the growth of their estates when the marriage ends through death or divorce.
When one spouse dies, the growth in each spouse’s estate must be worked out before the estate can be shared. In simple terms, this means comparing what each person had at the start of the marriage with what they had at the end.
The Supreme Court of Appeal confirmed in Manelis v Manelis that if spouses recorded the starting values of their estates in an antenuptial contract, those values will generally be used in the calculation later. They can usually only be challenged for recognised legal reasons, such as fraud, misrepresentation, pressure or a genuine mistake.
Marriage out of community of property without accrual
If spouses marry out of community of property without accrual, their estates stay completely separate. Each person owns their own assets and is responsible for their own finances. This gives both spouses financial independence, but it also means a surviving spouse does not automatically share in the growth of the other spouse’s estate.
Divorce and your Will
When people are going through a divorce, they often focus on the legal process and forget to update their Will. This can create serious problems, especially if an ex-spouse is still named as a beneficiary.
South African law gives some protection for a short time after divorce. For three months after a divorce is finalised, the law generally treats an ex-spouse as if they died before you, if you had not yet updated your Will. This means if you pass away in those three months anything you left to your ex-spouse in your Will does not go to them.
But this protection only lasts for three months. If you do not update your Will after that, your ex-spouse may still inherit if they are still named in the Will. The safest approach is to update your Will as soon as possible after a divorce.
Women’s Month is a reminder that empowerment is also about planning for the future. Understanding how marriage, divorce and your chosen marital property system affect your estate can help make sure your wishes are followed and your loved ones are protected.
Life changes, and your Will should change with it. Whether you are getting married, going through a divorce or simply reviewing your situation, keeping your estate plan up to date is one of the best ways to protect what matters most and leave your legacy to the people you choose.
ENDS
