Antenuptial contract – when death occurs in a marriage

A marriage or civil union affects a couple’s assets not only while they are alive, but also if one of them dies. Couples need to be aware of a list of issues to make sure that after one spouse or partner dies, the other is not financially prejudiced.

Unlike a joint estate (which would dissolve following a spouse’s death), antenuptial contracts continue to apply after the death of one spouse. This means that if the marriage is out of community of property with accrual, and the accrual of the surviving spouse’s estate is less than that of the deceased spouse’s estate, the surviving spouse must lodge a claim with the executor against the deceased spouse’s estate for his/her share.

Equally, if the accrual of the deceased spouse’s estate is less than that of the surviving spouse’s estate, the executor will lodge a claim against the surviving spouse on behalf of the deceased spouse’s estate.

If a couple is married out of community of property with accrual, and the surviving spouse has an accrual claim against the estate, this will be a liability against the estate that must be subtracted before the estate can be distributed to the beneficiaries named in the will.

Sometimes the first-dying spouse does not leave his/her entire estate to the surviving spouse, instead leaving certain assets to a certain party. This can cause problems, leaving insufficient readily realisable assets in the estate to meet the accrual claim.

If a marriage ends without an antenuptial contract, this can potentially leave the surviving spouse with unanticipated debt from his/her deceased partner. The deceased’s creditors may lay claim to the surviving spouse’s assets, even though it was the deceased who was responsible for initiating the debt. This is one reason why couples today often decide to marry out of community of property.

If a couple is married out of community of property without accrual, then the estates will be dealt with separately and there will be no debts owed from one to another. In a prenuptial agreement without accrual, any significant increases in wealth or debt by one spouse during the marriage will not be placed upon the surviving spouse if there is a death.

If the marriage is out of community of property, it is especially important to have a will in place. This will ensure that the surviving spouse inherits in accordance with the wishes and intentions of the deceased, usually discussed and agreed jointly by the couple.