If your Will which you signed while you were married makes provision for a bequest to your spouse and your marriage is subsequently terminated by divorce, then the Wills Act (the law in South Africa governing the requirements for a Will to be valid) provides that if you die within three months from the date on which your divorce order is granted your former spouse will not be eligible to inherit the bequest concerned. However, after the three month period has expired the bequest to your former spouse is no longer invalidated in this manner and if you do not want him or her to inherit on your death then you must change your Will to take this into account.
The maintenance obligations which you undertook in the agreement between your former spouse and yourself, which agreement forms part of the order of court terminating your marriage, do not cease on your death. Your estate will have to cover whatever claims may be made by your former spouse either in her personal capacity or in her capacity as guardian of the dependent children born of the marriage, or possibly both. In this regard, there is a need to consider whether there will be sufficient liquidity in your estate to meet these claims and also to possibly provide in your Will for a structure which will manage the payment of same for their duration which could be for many years after your death. Failure to plan carefully in this regard may not only prejudice the rights of the persons you are liable to maintain in terms of the divorce order but also the financial security of your other dependants at the time of your death i.e. a second spouse and children born of that marriage.
Retirement products and insurance policies require careful consideration at this time to ensure that they will be distributed in accordance with your wishes and for the optimal benefit of your dependants.
For assistance in connection with the above please contact us on 041 363 6044 or info@kaplans.co.za.
