You need to take into account the terms of your marriage contract when you draft your will, because if, on your death, they clash, the marriage contract overrides the will.
David Knott, a fiduciary specialist at Private Client Trust, a division of Private Client Holdings, says estate planning always needs to take into consideration the regime under which you are married: in community of property, out of community of property, the terms of your ante-nuptial contract (with or without accrual), and even the laws of the country in which you were married.
Knott says that if you are married in community of property, you cannot leave your assets to whom you like, because you own only half of them – the other half are owned by your spouse. Likewise, he says that if you are married out of community of property but with accrual, on your death a calculation must be made as to the growth of both estates, and the partner whose estate has grown least has a claim against the other’s estate. If the claim is against the deceased spouse’s estate, this will affect the distribution of assets in terms of the will.
Knott offers an example of how things can go wrong with estate planning if you do not factor in the terms of your marriage contract.
“A man dies, and in his will he bestows one quarter of his estate to his wife and the rest in equal shares to his three children from his previous marriages.