Marriage Estate Planning
These days, many professionals establish their careers, buy property, or build businesses well before tying the knot. Plus, many people bring children or other family members they care for into the marriage. That’s why sorting out your estate before you tie the knot is super important. Please make sure everyone’s looked after.
When considering the change of status, and 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 before 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 those of your spouse. In these circumstances, upon death or divorce, your spouse will not have any claims against your estate, nor will 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. Under this system, parties keep their separate estates completely independent during the subsistence of the marriage, meaning there is no joint estate and you are not liable for each other’s debts. However, upon dissolution of the marriage by death or divorce, the net increase in value (the accrual) of both estates during the marriage is calculated. The spouse whose estate showed the smaller growth is then entitled to claim half of the difference from the spouse whose estate grew more. Depending upon your 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 your last will and testament is updated immediately when you marry. It is a common misconception that marriage automatically updates or invalidates an old will. If you have an existing will that excludes your new spouse, or if you do not yet have a will (meaning the laws of intestate succession will dictate how your estate is split), your new marital status requires immediate testamentary revision to reflect your new responsibilities.
Ensuring that you have a valid, updated 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.
Saeedah Salie
saeedah@bbplaw.attorney
Associate
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