Effect of Divorce on Testate Succession

It often occurs that a spouse nominates the other spouse as a beneficiary in his or her will. Where the spouses subsequently divorce, the question arises whether the former spouse will still inherit in terms of the will. If the testator, however, changes his or her will to disinherit his or her former spouse the position is clear and therefore such former spouse will not inherit. The problem however arises where the testator does not change his will which will have the effect of section 2B of the Wills Act 7 of 1953 being invoked. This section provides that if a testator dies within three months after his/her divorce, any will he or she executed prior to the dissolution of the marriage will be implemented as if his/her ex-spouse had died before the dissolution of marriage. In other words, the ex-spouse will be deemed to have died before the dissolution of the marriage and will thus not inherit.

The aforementioned is the position unless it is clear from the will that the testator wanted to benefit his/her former spouse despite the divorce. Thus, if a testator no longer wishes that his former spouse should inherit he/she should revoke the existing will. If the will is not revoked and the testator dies more than three months after divorce, the testator's ex-spouse inherits if he/she was benefited in the will.

The application of the said section can best be explained by using the following example:

A husband benefits his wife in his will. The spouses get divorced. Two months after the divorce the husband dies without changing his will. In terms of section 2B, his ex-wife does not inherit, unless it is clear from the wording of the will that the husband wanted her to benefit despite the divorce. If, however, the husband died more than three months after the divorce, his ex-wife will inherit in terms of section 2B.

It is therefore imperative that one changes your will after divorce as the consequences could be dire for subsequent heirs, such as the new wife.

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