By Elize Louw – Head of Estate Administration 

Updated 12 January 2026

Choosing a marriage regime is one of the most important financial and legal decisions you will ever make. In South Africa, your chosen marital property system directly affects estate planning, executor’s fees, transfer costs, inheritance outcomes, and accrual claims on death or divorce.

This guide explains the three marriage regimes in South Africa, how they affect your estate, and what you need to know to protect your assets and beneficiaries.

Marriage in Community of Property

Marriage in community of property means that both spouses’ estates merge into one joint estate.

Key characteristics

• All assets and liabilities are shared equally (50/50)
• Each spouse owns an undivided half share of the joint estate
• Creditors can claim against the joint estate

Assets excluded from the joint estate

Certain assets do not fall into the joint estate:

• Inheritances and legacies
• Donations and gifts
• Non-patrimonial damages (e.g. pain and suffering claims)

Effect on estate administration

• The full value of the joint estate appears in the Liquidation Account
• Executor’s fees are calculated on the gross asset value
• The Distribution Account reflects:
  • 50% ownership by the surviving spouse
  • 50% distribution to beneficiaries
• Transfer costs apply only to the deceased’s 50%
• No transfer duty is payable between spouses

Marriage Out of Community of Property Without Accrual

This regime requires an Antenuptial Contract (ANC) where the accrual system is expressly excluded.

Important: If the accrual system is not excluded in the ANC, it applies automatically under the Matrimonial Property Act 88 of 1984.

Key characteristics

• Each spouse has a separate estate
• No sharing of assets or liabilities
• No accrual or redistribution on death
• Each spouse keeps what they own

On divorce

While no redistribution applies on death, a court may order redistribution on divorce in terms of Section 7 of the Divorce Act 70 of 1979.

Marriage Out of Community of Property With Accrual

This is the most commonly recommended marriage regime for estate planning and asset protection.

How the accrual system works

• Each spouse keeps a separate estate during the marriage
• Each spouse remains responsible for their own debts
• On death or divorce, the growth (accrual) of each estate is calculated
• The spouse with the smaller accrual may claim half the difference from the spouse with the larger accrual

Accrual calculation

The claim is based on:

• Net value at commencement of marriage
• Net value at dissolution of marriage
• Excluded assets are not included in the calculation

Assets Automatically Excluded from Accrual

The following are automatically excluded unless stated otherwise in the ANC:

• Inheritances and legacies
• Donations (from third parties or between spouses)
• Non-patrimonial damages
• Life insurance proceeds paid to a nominated beneficiary
• Pension fund death benefits

Assets That Can Be Excluded by Agreement

Certain assets may be specifically excluded in the ANC:

• Family farms or heirlooms
• Shares in a family business
• Speculative assets likely to generate high capital growth
• Interests in family trusts

Future assets cannot be excluded — only assets owned at the time of marriage.

How Asset Exclusion Works

• Excluded assets are ignored when calculating accrual
• If an excluded asset is sold and reinvested, the new asset can remain excluded if properly documented
• A clear paper trail is essential to preserve exclusion

Accrual Claims and Estate Planning Risks

The accrual system can create unexpected estate complications, including:

When the spouse with the smaller accrual dies first

• The deceased estate may have an accrual claim against the surviving spouse
• This can cause liquidity problems

Solution:
The deceased spouse can bequeath an amount equal to the accrual claim to the surviving spouse in their Will.

Accrual vs Bequests in a Will

• Accrual claims must be settled before beneficiaries inherit
• Bequests may be reduced or eliminated by an accrual claim

Estate planning solutions

• Include the accrual claim in the bequest to the surviving spouse
• Make bequests conditional upon the spouse renouncing the accrual claim

Poor planning can trigger donations tax if the inheritance is less than the accrual claim.

Final Thoughts: Why Professional Planning Matters

Marriage regimes have long-term consequences for:

• Estate administration
• Asset protection
• Executor’s fees
• Inheritance outcomes
• Tax exposure

Careful estate planning, a properly drafted Antenuptial Contract, and a well-structured Will are essential to ensure your wishes are carried out and your beneficiaries are protected.

Speak to a professional today to ensure your Antenuptial Contract, Will, and estate plan work together to protect your legacy and your loved ones.