Pactum Successorium: Securing Inheritance within your Antenuptial Contract

Succession clauses in an antenuptial contract.


In South African law, the general rule is that a contract regarding the succession of a person's estate (a pactum successorium) is invalid and unenforceable. However, there is one powerful exception: Succession Clauses within an Antenuptial Contract (ANC). This specialised legal mechanism allows couples to secure their future and provide for a surviving spouse directly within their marriage contract, offering a level of protection that a standard Will might not provide on its own.

What is a Succession Clause?

A succession clause in an ANC is a testamentary provision where spouses agree on how their estates (or specific assets) will devolve upon the death of the first-dying partner. Unlike a Last Will and Testament, which can be changed unilaterally at any time, a succession clause in an ANC is contractual. This means it generally cannot be revoked or amended in a subsequent Will without the formal consent of the benefiting party.

Key Features of ANC Succession Clauses

  • Irrevocability: Because it is a registered Notarial Deed, it provides a "guarantee" of inheritance that protects the surviving spouse from unexpected changes to a Will.
  • Comprehensive Estate Planning:
     Beyond simple inheritance, the ANC can include:
    • The appointment of Executors.
    • The revocation of previous Wills.
    • The establishment of Mortis Causa Trusts to protect minor children.

  • Third-Party Bequests: It is even possible for a third party (such as a parent) to bequeath property to the spouses within the ANC. In this case, the third party must be joined as a party to the contract and sign it before the Notary Public.

Common Examples of Succession Clauses

At Louwrens Koen Attorneys, we customize these clauses to fit your specific needs. Typical phrasing includes:

"The parties declare that upon the death of the first dying of them, the survivor shall be entitled to the entire estate of the deceased spouse."

OR

"The parties agree that all immovable property acquired during the marriage shall pass to the surviving spouse upon the death of the first dying."

Why Include a Succession Clause?

We recommend exploring a pactum successorium clause for:

  1. High-Risk Business Owners: Ensuring the surviving spouse is protected regardless of future changes in business partnerships.
  2. Protection Against Family Disputes: Providing a legally entrenched right to assets that is harder to contest than a standard Will.
  3. Cross-Border Couples: Providing clear instructions that are registered with the Deeds Office, which can simplify the winding up of estates involving international assets.

Expert Notarial Services in Pretoria

Drafting a pactum successorium requires precision to ensure it does not conflict with the Matrimonial Property Act or future estate taxes. Our office at Loftus Versveld provides expert Notarial drafting and registration at the Pretoria Deeds Office to ensure your inheritance clauses are legally watertight. For a fixed fee of R1950, we ensure your ANC serves as both a shield for your assets and a secure plan for your legacy.


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