Don’t forget about your will when getting married or divorced!

In the highs of getting married or the lows of divorce, parties generally forget to think about their estate planning. This is understandable as no one wants to entertain thoughts of death and division of assets during those times! Unfortunately, such an oversight can create a mess in the event of your untimely death. The golden rule is to always, when there are material changes in your life like marriage, children, divorce and even death, revisit your estate planning and bring it up to date with the necessary changes.

When you get married in South Africa, your marriage is automatically in community of property unless you conclude an antenuptial contract to change this. This means that without an antenuptial contract, all assets and debt incurred before and after the marriage by both spouses, will form a joint estate for which both spouses are equally accountable. This also limits the freedom of testation of the spouses as the spouses only own 50% of the joint estate and can essentially only deal with 50% of the estate in their will.

Where spouses do conclude an antenuptial contract to exclude community of property (with or without the accrual system), it again becomes important to factor this into their wills, as the estates could be completely separate or could have claims for accrual that must be considered by the executor.

The above makes the importance of preparing your will to walk side-by-side with your antenuptial contract clear. Because you are getting married, your antenuptial contract and will jointly determine the proprietary consequences of your death and therefore need to be dealt with together when getting married and so avoid unforeseen consequences in the event of an untimely death.

In much the same way, the patrimonial consequences of a marriage are changed by divorce and it is in this pivotal moment again that your will must be updated to reflect your changed circumstances. The Wills Act 7 of 1953 in section 2B provides that if you die within three months of the date of divorce, a bequest to your divorced spouse will be deemed cancelled (except where you expressly provide otherwise). The result is, it effectively affords a divorcee three months to amend his/her will, failing which your divorced spouse could stand to inherit from your estate as indicated in your will if such is not changed.

So, remember to not forget about reviewing your will and broader estate planning when there are major changes in your life. For advice or assistance with estate planning, you should contact an estate planning advisor or specialist.

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).

March 29, 2023
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