Marriage, divorce and death in South Africa – why changing a will is critical
South Africans should revisit their estate planning when undergoing any major changes, including marriage and death.
Wright Rose-Innes said that South Africans getting married or divorced tend to forget about their estate planning, with many not wanting to think about death during these major life events.
However, it said that oversight in that nature may create a difficult situation should the person suffer an untimely death.
Marriages in South Africa are automatically in community of property unless the parties sign an antenuptial contract (prenup) to change this.
If a couple has not signed a prenup, all debts and assets incurred before and during the marriage by both spouses will form into a joint estate with both spouses held equally accountable.
This limits the freedom of testation as one spouse owns 50% of the joint estate and can only deal with 50% of the estate in their will.
Suppose spouses have entered into a prenup to exclude the community of property (with or without the accrual system). In that case, the prenup becomes an important part of their will, as estates could be completely separate or have claims for accrual that an executor must consider, said Wright Rose Innes.
Thus, a South African with a prenup must make sure that it is in line with their will.
As the person is getting married, their prenup and will jointly determine the proprietary consequences of their death and must be dealt with together to avoid any unexpected consequences.
The consequences of divorce are quite similar, making it important for divorcees to update their will to reflect the changes in their circumstances.
Section 2B of The Wills Act of 1953 states that if a person dies within three months of the date of their divorce, an inheritance to the divorced spouse will be cancelled – unless explicitly stated otherwise.
This gives a divorcee three months to amend their will or see their divorced spouse inherit from their estate if their will if it is not amended.
South Africans are thus urged to review their will and broader estate planning when going through major life events.
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