06/10/2017 13:01 SAST | Updated 06/10/2017 14:46 SAST

A Prenuptial Agreement Is Not Always An Open And Shut Case

Here's how the Maintenance of Surviving Spouses Act could save you.

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The death of multimillionaire Playboy founder Hugh Hefner has raised questions about the legal standing of a prenuptial agreement and will after one's death.

Hefner reportedly signed an "ironclad" prenuptial agreement with his wife, Crystal Harris, before tying the knot in 2012. As a result, his widow won't inherit a thing. Instead, his $43 million estate will be split between his four children, a film school and a number of charities.

However, if Hefner and his wife were South African, there are slight possibilities the prenup would not hold up, if contested by Harris.

Even if a couple was married out of community of property, without accrual, a surviving spouse who has been excluded from the will may have a claim against the estate for maintenance in terms of the Maintenance of Surviving Spouses Act.

In terms of the maintenance Act, the surviving spouse is permitted to claim maintenance to continue living at the standard to which they are accustomed.

However, this is circumstantial.

"If, for example, the wife stays home to raise the children and does not contribute financially towards the marriage, and the other spouse works and accumulates assets, the wife may find herself with nothing and no claim to her husband's assets, save for a possible spousal maintenance claim," according to Divorce Laws.

"If she was dependent on the deceased spouse and is unable to provide for herself, she is permitted to claim maintenance in order to continue living up to the living standards she has been accustomed to," clarified Old Mutual fiduciary specialist Alida Brink.

Brink added: "Hypothetically speaking, since Hefner gave his wife $5 million and an apartment before his passing, she would not have succeeded with a maintenance claim [in South Africa]."

Brink said a clear will is important especially in cases where ultra-high net worth individuals have multiple ex-partners and children from previous relationships. "An unclear will can result in years of fighting around how an estate should be divided up among different families and spouses."

READ: The Wife, The Other Woman And The Deceased Husband's Estate -- What Happens?

The Wills Act stipulates a few requirements for a will to be legally binding. For example, it must be signed in the presence of two witnesses, with the testator's signature appearing on each individual page.