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Trusts and Estate Planning

Most South Africans are married either under an anti-nuptial contract (ANC) with accrual or a traditional marriage. The latter is marriage in community of property which means that there is only one estate and this is owned equally by the spouses. Under an ANC with accrual, what each spouse brings into the marriage remains theirs. There are then two separate estates which increase in value equally after marriage.


However, there are certain increases which do not get shared –

1) Distributions from trusts or deceased estates, donations from third parties.

2) Damage awards from slander or defamation type of litigation and awards from a dread disease insurance policy.

3) Donations from one spouse to the other.

But what about the increase in value of, for example, fixed property that was brought into the marriage by one of the parties?

The answer is that it is the asset that is brought into the marriage and not just its value at the time, so it remains in the estate of the original owner and this includes any increase (or decrease) in value.



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