THE INEVITABLE INTERPLAY BETWEEN YOUR MARITAL REGIME UNDER SOUTH AFRICAN LAW, YOUR WILL, AND THE ADMINISTRATION OF YOUR DECEASED ESTATE

During the ordinary course of an average person’s life, various and isolated contracts and agreements are concluded which will eventually be read together. Your will, marital regime and other elements regarding estate planning is one example of this inevitable interplay between documents of great legal significance. An oversight or a failure to align these documents can result in unintended consequences, particularly for surviving spouses.

1.    Your Marital Regime is the Starting Point:

Marriage regimes such as in community of property, out of community of property with the accrual or out of community of property without the accrual, are governed by the Matrimonial Property Act 88 of 1984.

Briefly stated, when parties are married in community of property, there is one joint estate between the spouses, and the spouses need each other’s consent to contract. Marriage out of community of property with the accrual means that each spouse retain their respective estates during the course of the marriage and an accrual claim arise at date of dissolution of the marriage, which is either death or divorce. An accrual claim is determined by calculating the value of the respective estates and thereafter the economically weaker spouse has a claim for half of the difference between the respective estates.  Lastly, marriage out of community of property without the accrual is when both spouses retain their own separate estates and do not have a claim against the other which emanates from the marital regime on date of dissolution.

Each of these regimes determine what forms part of the deceased estate, and more critically, what does not. Marriage in community of property, for example, prescribes that once the joint estate is dissolved then the surviving spouse is automatically entitled to 50% of the joint estate. The deceased person’s 50% forms part of the deceased estate for distribution. In this instance, a will which was executed by the deceased can only govern half of the estate, and more than 50% cannot be bequeathed.

Upon dissolution of a marriage out of community of property with the accrual (dissolution in this instance referring to death of the other spouse), the spouse whose estate has shown less growth has a claim against half of the difference between the two estates. This accrual claim is calculated before the dissolution of the estate and is essentially treated as a debt against the estate.

Out of community of property without the accrual establishes no automatic claim (unless proven through another legal mechanism) and the provisions of the deceased spouse’s will and statutory claims will be dealt with in the administration of the estate.

2.    The Role and Provisions of your Will:

For a will to be valid in terms of South African law it must comply with the formalities as set out in the Wills Act 7 of 1953, namely that:

(a)  The Will must be in writing;

(b)  The Testator must have capacity to make and execute the Will (i.e. over the age of 16 and mentally competent);

(c)  The Will must be signed by the Testator and the Witnesses in each other’s presence;

(d)  The Will must reflect the free and voluntary intention of the Testator.

The Will of the deceased person governs the distribution of the remainder of the estate, only after all prior accrual claims, other claims and obligations have been met. This effectively means that the provisions of a Will is subordinate to legally enforceable claims. These claims include but is not limited to the following: Funeral expenses, administration costs, taxes, debts, marital claims and maintenance claims by dependents.

3.    Maintenance Claims against your Estate (by your surviving dependents):

In terms of legislation such as the Maintenance Act 99 of 1998 and the Maintenance of Surviving Spouses Act 27 of 1990, any person who falls within the definitions of both acts (i.e. a dependent or a spouse) may have a maintenance claim against a deceased estate, even if they are disinherited or excluded from any other provision of your Will. These claims have to be proven and quantified correctly and in terms of the different legislative frameworks and the executor of the deceased estate must satisfy these claims before distributing any inheritance. Simply put, a maintenance claim can override the provisions of a Will and takes precedence over inheritances to heirs.

A surviving spouse may claim maintenance if the marriage created a legal duty of support and if the spouse cannot reasonably maintain themselves from their own means. This applies to civil marriages, civil unions and customary marriages recognized under South African law.

The process associated with the administration of a deceased estate makes provisions for such claims to be made against the estate. The executor of the estate will recognize the claims and follow the procedure as set out in the Administration of Estates Act 66 of 1965.

4.    Nomination of specific beneficiaries on various policies:

This effectively constitutes another layer of the estate planning framework, which can significantly affect both spousal claims, maintenance claims and what becomes available for distribution under a Will.

Where a valid beneficiary nomination on a separate policy exists (for example a life policy), the proceeds of that policy is paid directly to the nominated beneficiary, does not form part of the deceased estate and is not governed by the provisions of the Will. The interplay between such nominations and the possible effect it might have on the value of estates (when considering an accrual or maintenance claim) or possible liquidity problems in the estate which it might cause are undeniable and will have to be considered on its own merits in specific instances.

The key factor to be mindful of when nominating a beneficiary on a policy is that a beneficiary nomination does not operate in isolation. It has the power to materially effect and alter the balance between your estate, your spouse’s rights and your intended heirs. While it is a powerful estate planning tool, it is very important to use it carefully and in conjunction with your marital regime and to avoid undermining both legal obligations and practical outcomes.

5.    Conclusion:

While estate planning and concluding different contracts during the subsistence of your life is often done in fragments, these elements form a single legal and financial ecosystem. The marital regime determines what falls into the estate, estate administration prioritises competing claims, beneficiary nominations may divert assets outside the estate, and the will governs only what remains.

To avoid any unintended consequences that you are unable to control beyond the grave it is important to approach the signing of these contracts and effective estate planning in a holistic and integrated way.

By Clarisa Vermaak

(Senior Associate)

3 June 2026

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