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.
“However, when this man was drafting his will, he forgot that he had entered into an ante-nuptial contract with accrual, which gives rise to a claim against his estate by his surviving spouse. The result is that his wife inherits five-eighths and each of his children inherit one-eighth – far from what he had intended in his will.”
There are many issues that can change the way your estate is distributed – despite your clear last wishes.
“The preparation of a valid, workable will requires a skilled estate planning expert who is fully aware of all the problems that may arise should you not take your marriage contract into account. In this way, you can ensure that your estate is shared among your intended heirs without undue problems and strife,” Knott says.