When a particular asset is excluded from the accrual of a spouse, it will not be taken into account as part of that spouse’s estate when calculating the accrual. This could be of particular relevance for parties in the following circumstances:
a) Where a spouse has promised the particular property to a third party.
b) Where income is derived from a share in a family business.
c) Where a party has speculative property which may generate significant capital profits.
d) Where a party has an interest in a family trust and the capital of the trust, which may be distributed to him as a beneficiary of that trust.
To illustrate the effect of excluding a particular asset from the accrual system, consider an example where X is the owner of immovable property to the value of R 500 000.00. X and Y enter into an antenuptial contract. If X declares that amount to be the nett commencement value of his estate, then that amount (as escalated) will not be included in the accrual of his estate.
However, the increase in the property's value due to inflation and improvements or extensions thereto will be included in the accrual of his estate on the dissolution of the marriage. Y will thus benefit from the increase in the value of the property. If the particular property is excluded from the accrual, then the property will not be considered when calculating the accrual.
The increase in the property's value due to inflation and improvements or extensions thereto will also not form part of the accrual and Y will thus not derive any benefit thereto either. It is important to note that the value of the excluded assets must also be excluded from the declared nett commencement value of the appropriate spouse's estate.
When particular assets are excluded, it must be stipulated whether the income derived from them forms part of the accrual. The exclusion of assets should be clearly stated in the antenuptial contract, listing the assets of each spouse that are excluded, as well as all liabilities attached thereto or any other asset acquired by such party by virtue of his/her possession thereof.
Example clause of inan antenuptial contract::
"The assets of the parties mentioned below, as well as all liabilities attached thereto, or any other asset acquired by such party by virtue of his/her possession thereof, shall not be taken into account as part of such party’s estate either on the date of conclusion of the marriage or upon dissolution of the marriage:
1. The assets of the husband thus excluded are R (figures)(words) consisting of:
-List the assets excluded-
2. The assets of the wife thus excluded are R (figures)(words) consisting of:
-List of assets excluded-"