Page 36 - Bespoke EPG 2017 Digital

◆◆ 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);

◆◆ 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;

◆◆ Not all assets are included in the accrual calculation, such as inheritances,
donations or legacies received by one spouse during the course of the
marriage, donations between spouses, any assets specifically excluded
in the contract, and any cash paid to the spouse in regard to a claim for
defamation (as this claim would have been of a personal nature).

Marital property regimes and estate planning

Donations between spouses are exempt from donations tax and estate duty.

Marriage in community of property

■■ In the event of the death of one spouse, the surviving spouse will have a
claim for 50% of the value of the combined estate, thus reducing the actual
value of the estate by 50%. The estate is divided after all the debts have
been settled in a deceased estate (not including burial costs and estate duty,
as these are the sole obligations of the deceased and not the joint estate).

■■ When drafting a Last Will and Testament, spouses married in community of
property need to be aware that it is only half of any asset that he or she is
able to bequeath.

■■ Upon the death of one spouse, all banking accounts are frozen (even if they
are in the name of one of the spouses), which could affect liquidity.

■■ Donations or bequests to someone married in community of property can be
made to exclude the community of property – in other words – if the donor
stipulates that the donation must not fall into the joint estate, then the donee
can build up a separate estate. However returns on such separate assets will
go back to the joint estate.

■■ Fideicommissary property and usufructs do not form part of the joint estate,
however the fruits or income derived there from, do.

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