Appleton MD, Lauren Hean, provides clarity regarding your antenuptial contract.
What is an Antenuptial Contract (ANC)?
An antenuptial contract (ANC) is a legal contract concluded before marriage, executed by a notary public and registered in the Deeds Office. Its primary purpose is to determine the matrimonial property system that will apply during the marriage and on its dissolution by death or divorce.
In South Africa, if no ANC is concluded, spouses are automatically married in community of property under the Matrimonial Property Act 88 of 1984.
Matrimonial Regimes created by an ANC.
An ANC allows spouses to choose between:
- Out of community of property, without accrual
- Out of community of property, with accrual
Both regimes exclude the creation of a joint estate, but differ significantly in how wealth growth is treated.
How an ANC helps in the case of death
(a) Estate Separation
Where spouses are married out of community of property:
- There is no joint estate
- Only the deceased’s own estate is administered
(b) Accrual Claims on Death
If the marriage was out of community with accrual:
- Accrual is calculated on death in the same way as on divorce
- The surviving spouse may acquire an accrual claim against the deceased estate
- This claim ranks as a debt against the estate, reducing the dutiable estate before inheritance is distributed
The Maintenance of Surviving Spouses Act still applies, despite an ANC
The Maintenance of Surviving Spouses Act 27 of 1990 gives a surviving spouse a statutory claim for reasonable maintenance against the deceased estate if they cannot provide for themselves from their own means.
Crucially, this claim exists regardless of the matrimonial property regime and it operates independently of the Will and any ANC.
Practical Estate‑Planning Implications
An ANC is a powerful planning tool, but it is not absolute.
In practice:
- ✔ It determines property ownership and accrual rights
- ✔ It protects against creditor and insolvency risk
- ✖ It cannot eliminate statutory maintenance claims
- ✖ It cannot fully prevent redistributive intervention where fairness demands it
For high‑risk or blended‑family estates, ANCs should be aligned with:
- A carefully drafted Will
- Spousal maintenance planning
- Life insurance and liquidity planning
- Clear acknowledgement of potential Maintenance of Surviving Spouses Act exposure
We trust this article has been of great value to you and we look forward to being of service to our clients. Should you have any questions regarding this article, please email us at clientcare@appleton.com
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