This blog provides information on South African inheritance laws for divorced spouses. Section 2B of the Wills Act 7 of 1953 provides a three-month grace period for divorced spouses to update their Will. The blog explains the necessary documents needed to determine the divorce date and the date of the deceased's death. It also highlights the possibility of another spouse or dependent child being disinherited due to the ex-spouse's inheritance as outlined in the Will.

INTRODUCTION

Divorce is a difficult experience that can cause emotional and financial upheaval, and amidst all the turmoil, it's easy to forget about making changes to one's Will. This is particularly true when the ex-spouse is named as a beneficiary or executor in the deceased's estate. To address this issue, South African law introduced section 2B of the Wills Act 7 of 1953, which allows a grace period of three months for divorced individuals to update their Will. If no changes are made during this time, the law assumes that the deceased intended for their ex-spouse to receive the benefits outlined in the Will.

GETTING THE REQUIRED DOCUMENTS

If the deceased was divorced at the time of their death, the Master's Office will require certified copies of the death certificate and divorce order, along with its settlement agreement, during the registration of the deceased's estate. These documents are needed to verify the date of divorce with the date of death listed on the death certificate. Once the Master's Office receives these documents, they will file them for safekeeping.

SCENARIO WHEN THE DECEASED DIED 3 MONTHS AFTER THE DATE OF THE DIVORCE

If the deceased died three months after the date of divorce, their Will remains valid in its entirety, according to Section 2B of the Wills Act. This is because the law provides a grace period of three months for the divorced individual to update their Will. If they fail to do so, the law assumes that the deceased intended for their ex-spouse to receive the benefits outlined in the Will.

However, if the deceased was legally married to another person at the time of their death, the bequest to the ex-spouse may result in the disinheritance of the surviving spouse. The surviving spouse is not left without recourse and can submit a maintenance claim against the estate if they can prove that they cannot reasonably provide for their own maintenance needs. To do so, the surviving spouse must submit an affidavit and supporting documents to the executor for consideration of the claim.
Similarly, if the bequest to the ex-spouse results in the substantial disinheritance of a dependent child under the age of 18 or a child whom the deceased financially supported, the dependent child may submit a maintenance claim against the deceased estate.

Once the creditors have been paid, any proven maintenance claims are paid, and only then will the nominated beneficiaries in the Will receive what is left.

SCENARIO WHEN THE DECEASED DIED WITHIN 3 MONTHS FROM THE DATE OF THE DIVORCE

Under Section 2B of the Wills Act, if the deceased dies within three months from the date of divorce, their ex-spouse is considered "predeceased" for that period. This means that the ex-spouse cannot inherit or be appointed as an executor of the deceased's estate, unless the deceased executes a Will within the three-month grace period that directs the ex-spouse to inherit, contrary to the provisions of Section 2B.

Section 2B is based on the assumption that a deceased divorcee would not generally intend to leave their estate, or a portion thereof, to their ex-spouse. However, if the deceased is legally obligated to provide maintenance support to their ex-spouse, then the Will should make allowances for this. In such an instance, if the deceased significantly disinherits the ex-spouse, the ex-spouse may submit a maintenance claim against the estate for the executor's consideration. Once the creditors have been paid, any proven maintenance claims are paid, and only then will the nominated beneficiaries in the Will receive what is left.

CONCLUSION

In conclusion, a bequest and/or nomination to a divorced spouse in the deceased's Will, made prior to the divorce, will not necessarily fall away after the divorce. If the deceased dies within three months of the divorce date, such a bequest and/or nomination will fall away, unless the deceased expressly provided otherwise. However, after the three-month grace period, the deemed revocation rule will fall away, and the divorced spouse will benefit as indicated in the deceased's Will.

It is important to note that this may result in the potential disinheritance of another spouse or dependent child who may have otherwise inherited from the deceased's estate. In such cases, the surviving spouse and dependent child may submit a maintenance claim against the deceased's estate. It is recommended to consult a legal representative for more information in this regard.