By Sanette Viljoen
In a marriage the parties have a choice regarding the dispensation of their matrimonial property. There are three options:
- The parties may decide to marry in community of property, in which case the man and woman will be the joint owners of the joint estate, each one with regard to one half undivided share.
- The parties may also decide to marry out of community of property, where each one has his/her own, separate estate, or
- The parties may decide to marry out of community of property with inclusion of the accrual dispensation. In such a dispensation each spouse retains and controls his/her own estate for the duration of the marriage. Should the marriage however be dissolved, the spouses will share the accrual or growth of their respective estates.
Where a person is marries out of community of property with inclusion of the accrual dispensation, it is important to know that the accrual claim of the surviving spouse (if the growth of the surviving spouse’s estate was smaller) must first be paid out before anything can be devolved to heirs.
In other words, should the testator, for example the husband, wish to ensure that his estate is divide in half between his wife and his children, he has to realise that his wife may first enforce her potential accrual claim against the estate, before she and other heirs can inherit further according to the will.
An option that might be considered, when the testator wants the estate to be divided 50/50, is to state in your will that your heirs inherit in equal portions, but that the surviving spouse’s accrual claim must first be subtracted from her inheritance to in so doing ensure that the equal division comes into effect.
It therefore is always important to take your matrimonial property dispensation into account when drawing up your will.