Antenuptial Contracts and Deceased Estates

When getting married out of community of property, either with or without accrual, it is vital that an antenuptial agreement be entered into as it regulates what happens to the respective spouses’ assets and liabilities during the marriage, but also for estate planning for when a spouse has passed away.

In a marriage that is out of community of property excluding accrual, the respective spouses are free to deal with their estates in a will as they please, as the estates are dealt with separately and have no debts owed from one to another. The surviving spouse may have a maintenance claim against the deceased estate, but this does not prohibit either spouse from making bequests in their will.

In a marriage that is out of community of property but including accrual, the respective spouses may also create a separate will bequeathing their estates, but if the estate of the first-dying spouse has shown a larger growth, then the surviving spouse may have an accrual claim against the estate. Such an accrual claim is a preferent claim, which is paid after all debts and liabilities of the estate have been paid, but before any bequests or inheritances are distributed.

When calculating the accrual, inheritances or donations received during the marriage are excluded, as well as any assets that have been specifically excluded in the antenuptial contract, such as pension funds or even valuable items such as jewellery or art pieces.

It is therefore important in both instances of a marriage out of community of property to draft a comprehensive antenuptial contract and a will to avoid any disputes between those that are left behind.