Stated simply, inheritance is when an individual, on their death, bequeaths an asset to another individual (typically family). That asset may be sentimental or have hard value. It is an act, that although good-willed, comes with legal implications.
By law, if you receive any asset with some value, it then also becomes an asset in your estate. The question is what happens to that inherited asset in the case of a certain event, particularly death or divorce.
As with any family law matter, the way you were married sets many of the rules that will apply.
We have written extensively on the different marital regimes in a previous article, but for today, it’s enough to do a quick recap on the essence of each:
The basics
Marriages in Community of Property (“COP”)
This is the default regime and applies unless you draw up an ante-nuptial contract before you get married. Each spouse owns half the undivided share of the communal estate, and therefore also half the debt.
Assets that are built up before the marriage, as well as those that accrue during the marriage, form part of the communal estate.
Marriages Out of Community of Property including the accrual system (“ANC”)
Spouses sign an ante-nuptial agreement before the start of the marriage. In this case community of property is excluded so that each spouse keeps their pre-wedding assets, but the communal estate after the marriage is divided equally.
The accrual system is included by default unless it is expressly excluded in the ante-nuptial agreement.
Marriages Out of Community of Property excluding the accrual system (“ANC excl. accrual”)
Spouses also sign an ante-nuptial agreement before they get married, to stipulate what happens to assets that they owned before they got married, as well as those accumulated during the marriage.
Each spouse owns and accumulates their own estate during the marriage and is not entitled to the estate of the other.
How will my inheritance be treated if…
With the above in mind, let’s look at a few questions that often arise when dealing with inheritances.
1. What if my inheritance was not protected in the testator’s will?
It’s common to see a clause in a will where the testator makes a bequest to a beneficiary but stipulates that it is free from a community of property or from profit and loss.
In other words, the testator stipulates that the beneficiary’s spouse will not be entitled to share in the inheritance at any point in time. This is called marital exclusion.
But what if the testator didn’t make this provision?
Marriages in Community of Property
Although a couple who is married in a Community of Property shares their assets and liabilities, an inheritance is excluded if there is a marital exclusion in the testator’s will.
If there was no marital exclusion in the testator’s will, and the beneficiary is married in the Community of Property (or is single at the time of the testator’s death, but later marries in COP), then the inheritance becomes part of the joint estate. In other words, it will be shared with his/her spouse.
Marriages with ante-nuptial agreement
If there was no marital exclusion in the testator’s will, it is of no consequence to the beneficiary.
One of two things happen here:
If you are single at the time of receiving your inheritance and later decide to marry, your inheritance is simply excluded from your ante-nuptial agreement.
If you are already married ANC, the inheritance is automatically excluded for the purposes of an accrual claim. [1]
Either way, your inheritance will not form part of the joint estate.
2. Can creditors attach my inheritance?
Marriages in Community of Property
In a COP marriage, creditors may lay a claim to the undivided interest of the joint estate, as well as any separately owned property.
So, while marital exclusion can protect your inheritance against your spouse, it does not protect you against your respective creditors. [2]
This means that a creditor may lay a claim to your inheritance, and the creditor of your spouse may lay a claim to your inheritance, regardless of what the testator specified in his will.
Marriages with ante-nuptial agreement
In an ANC marriage, a creditor will be able to attach your inheritance because it forms part of your estate, regardless of what the testator specified in his will.
However, the creditors of your spouse will not be able to attach your inheritance.
3. What happens to the growth of my inheritance?
If your inheritance is excluded from the joint estate, it refers to the capital value.
There must be a separate provision for the so-called “fruits” of the investment, which refers to the growth of an investment, or the income if the inheritance is a physical asset.
Marriages in Community of Property
The growth/income on the asset is automatically included in the joint estate.
Marriages with ante-nuptial agreement
The growth/income on the asset is automatically included in the joint estate, and an accrual claim unless it is specified otherwise in your ante-nuptial agreement.
4. What if I use my inheritance to buy another asset?
With inherited assets, replacement assets are treated as if they were the original asset.
This means that if you receive your inheritance worth Rx but later use the proceeds to buy another asset or investment, then the new asset/investment is treated in the same way.
If the original inheritance was included in your joint estate, then the replacement asset will be too. And vice versa.
5. What if I invest my inheritance into a joint account with my spouse?
Regardless of how you are married, if you place your inheritance into a joint account, or investment or become co-owners of a physical asset, then it is part of the joint estate, or accrual claim.
6. What about tax?
The tax liability is not regulated by your marital regime, because it is paid by the deceased estate.
This means that regardless of how you are married, you will receive your inheritance after all taxes have been paid.
Planning for the unknown
Over the years, Foundation has written much on estate planning, wills, and more recently, inheritance. We’ve certainly learned a lot through our clients’ experiences.
First and foremost, inheritance is an emotional journey because it starts with the loss of a loved one. Our colleague, Elke Zeki, recently wrote a very insightful article on the emotional impact of receiving an inheritance, and some of the financial planning issues to consider. You can read more about her research here.
Secondly, it’s intended to have a positive effect on the beneficiary and to carry this forward to the next generation, if possible.
However, as financial planners, we realise that neither of these aspects is easy to deal with.
At Foundation Family Wealth we are focused on generational wealth, and we have a highly specialised team with technical expertise in estate planning.
Speak to us if you would like to revise your financial planning and set up an appointment so that we can help you to structure your planning to suit your family’s unique circumstances.
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