Page 36 - Nexia SAB&T Estate Planning Guide 2024

u There is no prior contractual arrangement, apart from getting married;
u Spouses do not have two distinct estates;
u There is a joint estate, with each spouse having a 50% share in each and
every asset in the estate (no matter in whose name it is registered);
u Applies to assets acquired before the marriage and during marriage;
u Should one spouse incur debts in his own name, he will automatically
bind his spouse, who will also become liable for the debt;
u If a sequestration takes place (in the case of insolvency), the joint estate
is sequestrated.
n Marriage out of community of property
u An antenuptial contract (ANC) is drawn up by an attorney (who is
registered as a notary) before marriage;
u Where there is no contract, the marriage is automatically in community
of property;
u The values of each spouse’s estate going into the marriage are stipulated
in the contract;
u A marriage by ANC means that all property owned by spouses before the
date of marriage will remain the sole property of each spouse;
u Each spouse controls his /her own estate exclusively without interference
from the other spouse, although each has a duty to contribute to the
household expenses according to his /her means;
u To allow for assets acquired by spouses during the marriage to remain
the sole property of each spouse, the accrual system must be specifically
excluded in the ANC.
n ANC with accrual
u The accrual system automatically applies unless expressly excluded in the
antenuptial contract;
u The accrual system addresses the question of the growth of each
spouse’s estate after the date of marriage;
u The spouse whose estate shows the smallest financial growth will have
a claim against the estate of the other spouse, at dissolution (death or
divorce);
u The estate with the smallest growth will have a claim of 50% of the
difference between the growth in the respective estates, with reference to
the consumer price index to take into account inflation;
u Not all assets are included in the accrual calculation, such as
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