Antenuptial contract with accrual – inheritance

It is very important that a person drafting a will for married person receive all information regarding the assets and liabilities of both spouses. Furthermore, the consequences of the matrimonial regime must be carefully looked at.

The main purpose of the accrual system is to balance the increase in wealth of the two spouses to the marriage or civil union during the marriage. This is done by giving a claim to the spouse with the smaller accrual, against the spouse with the bigger accrual. When divorce or death of one of the spouses occurs, the increase in the real value of the estate of both spouses added up and divided by two.

If the first dying spouse is the one with the smaller accrual, the claim will be against the survivor who will have to pay the claim, unless he/she inherits more than the amount of the claim. In some instances, the entire estate may be bequeathed to someone else (e.g. a spouse’s children), in which case admin can become complicated if the surviving spouse does not have enough money to settle the claim. This can be especially tricky in a second or third marriage if the surviving spouse has to pay a claim to the estate, but the beneficiaries are not his/her own children.

In a marriage out of community of property with the accrual system, legislation excludes all inheritances or donations received during the course of the marriage from the accrual.

When looking at prenups and inheritance, it is also important to note that the following is automatically excluded from the accrual calculation: An inheritance, legacy or donation which accrues to a spouse during the subsistence of the marriage, as well as any asset acquired by virtue of his/her possession or former possession of such inheritance, legacy or donation.

When forming an antenuptial agreement, spouses can each decide to exclude certain assets. Excluding an asset means that it does not feature on the asset statement if the marriage is to dissolve and is completely excluded from the accrual calculation. Assets that are not properly outlined can lead to huge problems when the executor or the divorce attorney tries to decide what to do with it when working out the net accrual value.

It is in the discretion of the marrying couple to include any type of asset in the accrual of their estates. They must make sure that these inclusions are specifically regulated by the antenuptial agreement. So, they could include items such as inheritance in their accrual, but must discuss whether it might be better to have a separate will drafted for the couple.