The Accrual System
I can’t emphasise enough how important an Antenuptial Contract (ANC) is. I see it repeatedly that when couples get married, it is the last item on the “to-do” list and is often given the least amount of thought when, in fact, it is probably one of the most important documents you will ever sign.
The accrual system allows spouses to have their own assets and liabilities. However at the end of the marriage, either through death or divorce, the spouse whose estate shows no growth or a smaller growth in comparison to the other spouse, is entitled to claim half the difference between the growths of the two estates.
The “accrual of the estate” is the amount the estate at the end of the marriage exceeds the estate at the beginning of marriage.
Important facts to remember about the accrual:
- The accrual claim is not an entitlement to half of certain assets, it is an entitlement to share in the difference between the growths, if any, of the estates.
- The accrual claim only arises at the end of the marriage and is not transferrable or liable to attachment during the marriage nor does it form part of the estate of an insolvent spouse.
- The accrual of the estate of a deceased spouse is determined before effect to any will is given.
- In determining the value of a spouse’s estate, the following are NOT taken into account:
- Any amount received by way of damages, other than damages for patrimonial loss (e.g. damages which can be assessed e.g. damages to a car in a car accident);
- An asset which has been excluded in the ANC, as well as any other asset which is acquired by virtue of the excluded asset or former possession of the excluded asset;
- An inheritance, a legacy or a donation, as well as any other asset which is acquired by virtue of this inheritance, a legacy or a donation or former possession of such inheritance, legacy or donation; is excluded except if the spouses agree differently in terms of the ANC;
- Donations between spouses, other than a donation mortis causa (in a will).