Estate Planning: Marital Regimes

Today we are going to focus a bit more on the different marital regimes as they can and will have a profound impact on your planning and a sound knowledge of what happens in your marriage as an individual will help you make the appropriate choice with your estate plan.

In our country the following marital regimes exist among others:

• Marriages in community of property
• Marriages out of community of property
• Marriages out of community of property with inclusion of the accrual system

A marriage in community of property: In terms of the regime, this means that both the spouses are the owners of the joint estate. The joint estate is divided into two when the marriage is ended by the death of one of the parties. Each spouse can therefore bequeath his/ her portion of the joint estate as they wish in their will. Such a bequest must be considered carefully as it can create problems, when assets, movable or immovable are bequeathed to third parties.

Marriages out of community of property without profit or loss: The parties have to conclude an ante- nuptial contract (ANC). An ANC is an agreement between the parties regulating the marital regime applicable to their marriage as well as any other conditions that may be applicable. In a marriage out of community of property without profit and loss, each spouse has a separate personal estate. Each spouse can therefore deal with their property as they wish during the marriage and by way of a Will & Testament.

Marriages out of community of property with inclusion of the accrual system: In terms of this system teh net accrual during the duration of the marriage is to be shared equally by the spouses at death or divorce and enables the spouses the opportunity to share equally in the value of the assets acquired during the course of the marriage. During the course of the marriage each spouse has his/ her own estate with which they can deal.

Net value of the estate at termination of the marriage

At the termination of the marriage the net value of the spouses' respective estates must be determined.
Certain assets are excluded:

• Any amount accruing to the estate in respect of compensation for damages, except any amount of compensation for patrimonial loss;
• any assets excluded from the accrual system by virtue of the ANC;
• bequests, legacies and donations accruing to a spouse during the course of the marriage;
• any donations between spouses.