Many have asked the question if shares are excluded from an estate’s accrual if married out of community with the accrual system. In a recent blog post Van der Spuy and Partners shares that in order to answer the question one first need to explain how the matrimonial property system of married out of community of property with the accrual system works. Here is their explanation:
“When a couple choose to get married out of community of property with the application of the accrual system, they essentially agree to have separate estates for the duration of the marriage, but share in the accrual or growth of their separate estates. When the marriage dissolves, the growth of each estate is calculated and the spouse with the larger accrual will have the growth of his or her estate that exceeds that of the other estate, divided equally between the spouses. In other words, the spouse whose estate shows no accrual or a smaller accrual acquires a claim against the other spouse for an amount equal to half of the difference between the accrual of the respective estates.
Parties who intend to marry with the accrual system can list their individual assets at the date of marriage, which they wish to exclude from the accrual. A spouse can only exclude assets that he/she possessed at the start of the marriage.
Each share held is an asset of an individual estate. The company in which those shares exist is however not an asset of the estate. Therefore, a clause in an antenuptial contract excluding “all shares held in company ABC” must be understood to exclude only the shares held at that time and not any additional shares acquired in future.”
There are exceptions though. Click here to access the blog post and to understand the exceptions that do exist.