Page 104 - Q&A 2019/2020

Are shares excluded from my estate’s accrual?

Brady MacPherson
September 2019
“I’m married out of community with the accrual system. I specifically excluded
my share portfolio from my accrual in the antenuptial contract when we got
married. Recently when reviewing my estate planning the question came up
whether new shares that I acquired after we got married was also excluded for
purposes of an accrual calculation. What is the position here?”

To answer your question, one must first explain how the matrimonial property
system of married out of community of property with the accrual system works.
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.
In terms of section 4(1)(b)(ii) of the Matrimonial Property Act 88 of 1984, assets
which are excluded from the accrual system in terms of an antenuptial contract
will not be taken into account when accrual calculations are made.
Importantly though, a spouse can only exclude assets that he/she possessed
at the start of the marriage. Assets that the spouse intends acquiring in future
may not be pre-emptively excluded. The purpose of the accrual system would
be defeated if spouses could exclude assets they anticipated acquiring in
future. If this was allowed a spouse could exclude any asset that would cause
their estate to grow, ensuring that their estate would have no accrual.

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.
As with most legal rules there are exceptions. Section 4(1)(b)(ii) allows for the
exclusion of assets acquired in the future as a result of the initial asset excluded. Family
However, the spouse who claims they acquired the asset as a result of the
initial asset they owned must prove such an allegation. This means that for

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