“A great family heirloom, in the form of a beautiful golden necklace was handed down to me from my mother.  I am afraid that my husband might lay a claim for possession of the necklace once we get Divorced…….”

When you are married out of community of Property with accrual, there are certain things that will be excluded from the accrual.

When we look at the Matrimonial Property Act 88 of 1984, there is a list of things in Section 5(1) & (2) that are excluded from the accrual:

  1. An Inheritance – Property passing at the owner’s death to the heir or to those entitled to succeed
  2. A legacy – An amount of money or property left to someone in a will
  3. Donation – Instance of presenting something as a gift or contribution
  4. Any other asset acquired by virtue of possession or former possession

The following things will also be excluded from the accrual: Damages (specifically injuries, loss of property is not included) awarded to either of the spouses by a court settlement and also life insurance with the surviving spouse listed as beneficiary. The above-mentioned forms of donation include donations made between the spouses.

A life insurance policy benefit can also be taken out towards the children or surviving spouse and once the policyholder passes away the benefits will not form part of the estate but will be awarded to the beneficiary (surviving spouse). The policy will not be used in the calculation of the accrual and no estate duty will be charged as the policy will be excluded from the deceased estate.

There is however an exception regarding the exclusion of the above-mentioned list. If the spouses have agreed otherwise in their Antenuptial contract regarding these factors there will be a different outcome. It’s important to remember that for an asset to be excluded from the accrual, it must be properly described and it should be stated clearly whether the entire asset is excluded or just a specific value attached to the asset is excluded. If the testator or donor stipulated otherwise when the donation, inheritance or legacy was formed, then the above-mentioned list will not be applicable and the parties will be able to lay claim to the property.

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