In today’s society, individuals do not always enter into a marriage as a person without many assets or dependents. It is quite common for individuals to have accumulated assets or debts. Another important aspect to consider is that many individuals may have minor children from previous relationships or younger siblings or parents whom they support. Due to this the change of status upon entering into a marriage will have an impact upon all of these factors. For this reason, it is of utmost importance that estate planning is considered once you have decided to wed.
When considering the change of status, the impact marriage has upon your estate, one must look at the matrimonial property regime you shall fall party to, whether you have a valid last will and testament as well as any policies you may hold such as pension, provident fund, or life insurance policies. Where parties enter into a marriage, without taking steps to regulate the matrimonial property regime, such marriage is automatically regarded as in community of property. This means that both parties’ assets and debts are shared, both prior to the marriage and upon commencement thereof. However, this may result in many problematic circumstances as one party may come into the marriage with dependents of his/ her own. When considering circumstances such as these, one should consider regulating their matrimonial property regime and putting in place legal safeguards for their dependents.
A manner of ensuring the future of your dependents upon your marriage is by entering into an antenuptial contract. This would allow you to regulate your matrimonial property regime. Where parties have accumulated property of their own or have businesses they have built, it may be advisable to opt for a marriage out of community of property without accrual. This is where you may decide to ensure that your assets and debts are completely separate from that of your spouse. In these circumstances upon death or divorce your spouse will not have any claims against your estate nor would their creditors. This would also ensure that your dependents/heirs may have a claim to your estate in the event of your death.
Another matrimonial property regime to consider is that of out of community of property with accrual. This is where parties keep their estates prior to the marriage completely separate, but anything they accrue during the subsistence of their marriage would fall part of their joint estate. Depending upon your individual circumstances and the advice provided to you by your attorney, you may determine which matrimonial property system is most appropriate for your circumstances.
Aside from regulating your matrimonial property regime, one must also ensure that their last will and testament is constantly updated as the circumstances of their lives change. Ensuring that you have a valid last will and testament would allow you to set out how you wish your estate to devolve and your dependents to be cared for. This may be drafted hand in hand with your antenuptial contract and would ensure that there is no confusion in the handling of your estate. Here one may set up a testamentary trust to ensure the future of your dependents or specifically allocate certain assets to your spouse and the rest of your dependents.
When considering entering into a marriage there are many legal consequences thereof to consider.
Should you require assistance in setting out your estate and ensuring the stability of your dependents upon your marriage, contact us and we will gladly assist you.