Second Marriage: Why an Antenuptial Contract Matters More

A second marriage rarely starts on a clean slate. Each spouse usually arrives with assets built up over a working life, sometimes with property, often with retirement funds, and frequently with children from a previous relationship. The matrimonial regime you choose decides what happens to all of it — in life and at death.

The default trap for second marriages

If you marry without an antenuptial contract, you are automatically in community of property. For a second marriage, this means:

• The home you owned before the marriage merges into the joint estate — your spouse owns half, regardless of who paid for it
• Your retirement annuity, paid into for decades, falls into the joint estate
• An inheritance you receive falls into the joint estate unless your benefactor’s will specifically excludes it
• If your spouse is sued or sequestrated, your assets are exposed
• On your death, half of everything you owned goes to your surviving spouse before any of it can flow to your children from your first marriage

Few couples in second marriages would consciously choose any of this. But the default makes the choice if you do not.

Which contract suits a second marriage

Most couples in a second marriage choose an antenuptial contract without the accrual system. The reasoning is straightforward:

• Two completely separate estates. What you bring stays yours. What your spouse brings stays theirs.
• No automatic sharing on death. Your estate flows to your heirs (typically your children) according to your will, without first being merged or split with your spouse.
• No automatic sharing on divorce. Each spouse keeps their own — subject only to the court’s discretionary redistribution remedy under section 7(3) where one spouse genuinely contributed to the other’s estate.
• Spousal maintenance still possible. The court retains its discretion to award maintenance under section 7 of the Divorce Act and the Maintenance of Surviving Spouses Act.

For couples in a second marriage who plan to build wealth jointly — for example a younger second couple still in earning years — the with-accrual option can also work, especially when paired with carefully drafted exclusions for pre-marriage assets.

The will is half the answer

An antenuptial contract regulates the marriage. It does not, by itself, solve the inheritance question. For a second marriage you almost always need both:

• An antenuptial contract that keeps the estates separate
• An updated will that ensures your assets flow to the right beneficiaries on your death

Without the will, your separate estate may pass under intestate succession in ways neither you nor your children would have wanted. Estate planning for newlyweds.

A typical scenario

He is 58, widowed, two adult children, owns his home, and has a retirement portfolio. She is 55, divorced, one daughter at university, runs a successful consulting business. They have known each other for three years and want to marry.

Without an antenuptial contract, on her death, half of her business and home flow to him — ahead of her daughter. On his death, half of his home and retirement fund flow to her — ahead of his children. Neither outcome reflects what they actually want.

With a without-accrual contract: their estates remain separate. On death, each estate flows according to each spouse’s will. Their children’s inheritances are protected. They can still leave each other gifts in their wills if they choose.

Related: Without accrual · Excluded assets · Wills for newlyweds