Can I inherit from my ex-spouse?

01 February 2024 ,  Gerda Janse van Rensburg 66

It often happens that parties get divorced and then forget to change their wills.  The pit-fall therein is, that by dropping the ball on this your ex-spouse could still inherit from you even though you are divorced.  Now that is all fine and well, if you wish for them to still inherit, but that is usually not the case.

Section 2B of the Wills Act (No. 7 of 1953)  provides that “If any person dies within three months after his marriage was dissolved by a divorce and that person executed a will before the date of the divorce, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage.”

The act thus creates a “window period” of three months from date of divorce to re-draft your will and ensure that your wishes are executed after your death.  If you should pass away in that three month window period, your ex-spouse will be deemed as pre-deceased and will thus not be able to inherit from your estate.

However, if you fail to have your will redrafted after the three month window period and the last will bequeathed any of the assets to the ex-spouse, then the ex-spouse will inherit in terms of the will, despite the divorce.

It is thus important to remember that when you have your divorce finalized to add the drafting of a new will to the top of your To-Do list.