The Accrual System, introduced into our marriage law in 1984, automatically applies to all marriages out of community of property, unless specifically excluded by the relevant antenuptial contract.

In terms of the Accrual System, during the marriage the spouses are fully independent and there is a complete separation of property. On dissolution of the marriage either by death or divorce, the gains made during the marriage are shared. The Accrual System is intended to ensure that spouses share equally in the wealth they accumulate during the marriage.

On the death of a spouse, the Accrual claim is calculated and depending on their respective gains, could result in either (i) a claim being lodged by the surviving spouse against the estate of the deceased spouse (if the survivor shows the smaller gain) or

alternatively, (ii) the survivor might be required to make payment into the deceased spouse’s estate (if the latter shows the smaller gain).

The rule is that the Accrual claim is calculated and takes effect before applying the deceased

spouse’s Will. The Accrual claim, if it is due to the surviving spouse, constitutes a claim against the de-ceased estate which ranks in preference ahead of heirs. In other words, the Accrual claim due to a surviving spouse must be calculated before the terms of the Will are applied.

For example, if a testator, married to his wife with the Accrual System, has an estate worth R3m net (before factoring in his liability for an accrual claim) and he intends to have his wife and a child from a previous marriage each receive R1.5m, he may (in the absence of prudent advice) be inclined to simply state in his Will, “I leave my estate in equal shares to my wife and my child”.

However, the actual result, regardless of his intention, will be as follows (assume his wife’s accrual claim is calculated at R1m):

His wife will receive R1m (her accrual claim) PLUS half of balance of the estate after the accrual claim is paid i.e. ½ x (R3m – R1m) =

R2m in total

His child will receive half of balance left in the estate after paying the R1m accrual claim i.e. ½ x (R3m – R1m) =

R1m in total

As the testator overlooked his obligation to pay the accrual claim, the resultant split is not that which the testator intended when he stipulated they should “share equally”.

By properly planning for one’s death, one can en-sure that the effect of an accrual claim is properly dealt with. This planning may include life assurance which can be useful to ensure that there is enough cash in an estate to pay an Accrual claim or to pro-vide direct cash payments to spouses and other family members.