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Marriage with ANC

■■ Each estate planner (spouse) retains possession of assets owned prior to
marriage.

Marriage with accrual

■■ A donation from one spouse to the other spouse is excluded from the
calculation of each spouse’s accrual- in other words, the recipient does not
include it in his growth and the donor’s accrual is automatically reduced by
the donation amount.

Divorce

In the event of divorce, the marriage will be dissolved by court decree, which will
address such aspects as child maintenance, access, guardianship and custody,
spousal maintenance, the division of assets, division of pension interests and
so on.

The divorce order will have an effect on the estate planner’s estate plan, which
would then need to be reviewed and adjusted.

Cohabitation and definition of ‘spouse’

Cohabitation is defined as a stable, monogamous relationship where a couple
who do not wish to or cannot get married, live together as spouses. The Taxation
Laws Amendment Act has extended the definition of ‘spouses’ to include “a
same sex or heterosexual union which the Commissioner is satisfied is intended
to be permanent”.

Many pieces of legislation now define spouse to include a partner in a
cohabitative relationship, including the Pension Funds Amendment Act, Taxation
Laws Amendment Act, the effects of which are that cohabitees will benefit from
the Section 4(q) estate duty deduction in the Estate Duty Act and the donations
tax exemptions of the Income Tax Act.

It is important to understand the legal implications of marital property regime,
especially when drafting a Last Will and Testament and also when entering into
a marriage – as which regime the estate planner chooses, is going to affect his
assets.

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