A second marriage introduces a layer of legal and financial complexity that most couples underestimate. When both parties bring children, assets, and, in many cases, prior divorce settlements into a new union, the standard estate planning question shifts from “who gets what?” to “what does the law say happens first?”

The answer depends heavily on the matrimonial property regime chosen at the outset of the marriage, any existing maintenance obligations, prior divorce orders, and the structure of assets held at the time of death. A will addresses the distribution of assets within an estate. It does not address claims that arise before that distribution even begins.

Matrimonial Property Regimes and the Accrual System

How the accrual system works

When a couple marries out of community of property with the accrual system – the default position where no antenuptial contract specifies otherwise – each spouse is entitled to share in the growth of the other’s estate during the marriage.

On dissolution of the marriage (whether by death or divorce), the spouse whose estate showed less growth has a claim against the estate of the other for half the difference in accrual. This is governed by the Matrimonial Property Act 88 of 1984.

What this means in practice:

• The accrual claim is settled before the estate is distributed to heirs.
• The surviving spouse’s accrual claim reduces the assets available for distribution under the will.
• Children from a prior relationship may inherit less than anticipated, or nothing, depending on the size of the claim.

Excluding the accrual system

A couple may exclude the accrual entirely through an antenuptial contract registered before the marriage. This requires a notary public and registration at the Deeds Office under the Deeds Registries Act 47 of 1937. It cannot be entered into after the marriage without a court order under section 21 of the Matrimonial Property Act.

Children from Prior Relationships: Where Wills Fall Short

Intestate succession and the Intestate Succession Act

If a spouse dies without a valid will, the Intestate Succession Act 81 of 1987 determines distribution. A surviving spouse and the deceased’s biological or legally adopted children share the estate. Stepchildren do not inherit intestate unless specifically included in a will.

What a will can and cannot do

A will can:

• Nominate heirs, including stepchildren
• Establish a testamentary trust for minor children
• Appoint a guardian or trustee

A will cannot:

• Prevent a surviving spouse from having an accrual claim settled first
• Override a maintenance order under the Divorce Act 70 of 1979
• Force a surviving spouse to contribute assets they hold outside the estate
• Override beneficiary nominations on life insurance policies or retirement funds

Beneficiary nominations fall outside the estate

Retirement fund benefits are governed by the Pension Funds Act 24 of 1956 and are distributed at the discretion of the fund trustees to dependents and nominated beneficiaries. A will has no authority over this distribution. Life insurance proceeds paid to a named beneficiary also fall outside the deceased estate entirely.

In a blended family, this means a spouse from a first marriage may still receive retirement fund benefits even where the will names children from a second marriage as heirs.

The Maintenance of Surviving Spouses Act

The Maintenance of Surviving Spouses Act 27 of 1990 entitles a surviving spouse to claim reasonable maintenance from the deceased estate if the estate’s distribution (under a will or intestate succession) fails to meet their reasonable maintenance needs.

This claim ranks before distribution to other heirs. In a second marriage, this may result in children from a first relationship, who are heirs under the will, receiving less than the will intended.

Testamentary Trusts as a Planning Tool

A testamentary trust is established within a will and comes into effect on death. It allows assets to be held and managed for the benefit of specific beneficiaries (typically minor children) under defined terms. This mechanism is particularly useful in blended families where:

• Minor children from a prior relationship need provision without granting a new spouse control over those assets
• The testator wants assets preserved for children rather than passing directly to a surviving spouse
• The estate includes property that should not be sold or divided immediately

Trusts established by will are governed by the Trust Property Control Act 57 of 1988.

Practical Implications

These issues are not theoretical. They arise regularly in South African deceased estates involving second marriages, and they are not resolved by even the most carefully worded will.

Consider the following:

• If you are remarried and have children from a prior relationship, your will should be reviewed alongside your antenuptial contract (or the absence of one).
• Retirement fund and life insurance beneficiary nominations should be reviewed each time your personal circumstances change.
• If you have maintenance obligations from a prior divorce order, these obligations survive your death and rank against your estate.
• If your estate plan relies on assets being available at death, check which assets form part of your estate and which fall outside it.
• A testamentary trust may provide more reliable protection for children from a prior relationship than a direct bequest.

An attorney specialising in estates and family law should review the full picture, not just the will in isolation.

Conclusion

Estate planning in a second marriage requires more than updating a will. South African law creates multiple claims and obligations that operate before a will takes effect: accrual entitlements, spousal maintenance rights, retirement fund distributions, and existing divorce orders. Blended families face specific risks when these legal mechanisms are not addressed as part of a coordinated plan. A will is one document within a broader structure. In second marriages, that structure must be built deliberately.

 

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