Marriage and divorce are two of the most significant life events that should prompt you to review your will. Your circumstances can change considerably when you get married, divorced or remarry, and a will that once accurately reflected your wishes may no longer do so. So, can you change your will after getting married or divorced in South Africa? The simple answer is yes. In fact, major life changes such as marriage, divorce, the birth or adoption of a child, the death of a beneficiary, or a significant change in your financial circumstances are all good reasons to review your estate plan.

Changing your will after getting married

Getting married does not mean that you are required to keep the will you had before your marriage. You can make a new will or amend your existing will, provided that the necessary legal formalities are followed. However, marriage is an important time to review your will because your financial and family circumstances may have changed significantly. If you made your will while you were single, you may previously have intended for your parents, siblings or other family members to inherit your estate. After getting married, you may want your spouse to inherit all or part of your estate. You may also have children from a previous relationship or have children after your marriage, which could affect how you want your estate to be distributed. Your matrimonial property regime is also important. Whether you are married in community of property or out of community of property, with or without the accrual system, your marital circumstances should be considered when reviewing your estate plan. Your will should be drafted with an understanding of your broader financial circumstances and not considered in isolation.

There is no general rule requiring you to rewrite your will simply because you have married. However, if your intention is that your new spouse should inherit from your estate, or if your marriage has changed your financial and family circumstances, it is worth having your will reviewed to ensure that it still reflects your wishes.

What happens to your will when you get divorced?

Divorce is another important event that should trigger a review of your will.  Where a person dies within three months after their divorce or annulment and their will was executed before the divorce or annulment, the law generally provides that the will is interpreted as though the former spouse had died before the divorce or annulment. This is subject to an important exception where the will indicates that the testator intended their former spouse to benefit despite the divorce. This three-month rule is important, but it should not be viewed as a substitute for updating your will. If you have been divorced, you should not simply assume that your former spouse has automatically been removed from your estate plan.

What if I don't change my will after divorce?

This is where the three-month rule becomes particularly important. This means that if you subsequently die, your former spouse may still benefit in accordance with the terms of your existing will, depending on its wording. In other words, divorce does not automatically rewrite your will permanently. If you no longer want your former spouse to inherit from your estate, the safest approach is to have your will reviewed and amended after the divorce rather than relying on the statutory three-month provision. This is particularly important for someone who may have moved on with their life after divorce. You may have a new partner, children from another relationship, a new home, new investments or different wishes about who should inherit your estate. Your old will may no longer reflect any of this.

What if I want my former spouse to inherit?

Divorce does not necessarily mean that you must exclude your former spouse from your estate. You may still want your former spouse to inherit for various reasons, particularly where you have children together or have deliberately chosen to maintain certain financial arrangements.

The Wills Act recognises that a testator may intend for their former spouse to benefit despite the divorce. If this is your intention, it is important that your will clearly reflects that intention. The important point is that your will should reflect your actual wishes, rather than relying on assumptions about what will happen after your death.

What if I have children from a previous relationship?

Marriage and divorce can become even more complicated when children from previous relationships are involved. You may want to provide for your new spouse while also ensuring that your children ultimately inherit certain assets. For example, you may want your spouse to be able to remain living in your home after your death, while ensuring that the property ultimately passes to your children. Alternatively, you may want certain investments or other assets to pass directly to your children while making separate provision for your spouse.These intentions need to be carefully considered when drafting your will. Simply assuming that everything will automatically be distributed in the way you expect can create uncertainty and potentially lead to disputes between family members.

What if I have children after making my will?

The birth or adoption of a child is another major reason to review your will. Your estate plan should take your current family circumstances into account, particularly if you have minor children. You may need to consider who should inherit from your estate, how assets inherited by minor children should be managed, and whether a testamentary trust would be appropriate. You may also need to consider who should take on important responsibilities relating to your children should something happen to you. A will that was drafted before you had children may not adequately address these issues.

Can I simply change my will by crossing something out?

You should not simply cross out provisions in your will, write in new instructions and assume that those changes will automatically be legally valid. South African law contains specific formal requirements relating to the execution and amendment of wills. Depending on the circumstances, you may need to execute a new will or a properly executed codicil. A seemingly minor handwritten change can potentially create uncertainty about your intentions and the validity of the amendment. This is why having your will professionally reviewed and amended is often preferable to making informal changes yourself.

Conclusion

Updating your will after marriage or divorce is important, but your will is only one part of your estate plan. Your broader circumstances should also be considered. For example, you may need to review your antenuptial contract, matrimonial property regime, life insurance policies, retirement-related beneficiary nominations, trusts, business interests and ownership of property. Changes to one part of your financial circumstances can have consequences for the rest of your estate plan. A person who has divorced and remarried, for example, may need to consider not only what happens to their estate on death, but also how their new marriage, children from previous relationships and existing assets fit into their overall estate-planning structure. If you have recently married, divorced, remarried, had a child, acquired significant assets or experienced another major change in your circumstances, it may be time to review your will and broader estate plan.

Written by Robyn Shepherd, Attorney, SchoemanLaw Inc