When expressing the harsh consequences of parting, a well-known artist asked:

‘What will become of me? I do not like reality, for we changed from flames to dust, from lovers to friends. Why do all good thing come to an end?’

The expression aptly encompasses this reality of life: things change, good things come to an end – even marriages. When divorce happens, it is often acrimonious, some parties are so emotional that they only want to fight. This is so because leading to the point of divorce, flames of love have burnt so much leaving only dust and lovers have become foes.

When divorce happens, spouses would vow to never benefit each other materially. This then brings to the fore the important question: How does divorce affect a divorcees estate planning? This article wishes to explore the legal implications of divorce in as far as they affect the divorcees estate planning and possible death during such process, it will also explore, at least subtly, steps and measures to be followed when a person divorces.

Marriage has a material impact on a person’s patrimony. Plainly put, a spouse can benefit financially owing to divorce. Provided that when spouses divorce, it may be in their interest to ensure that they no longer unduly benefit the other spouse. However, people tend to focus more on the fighting than preparing for the bigger picture. This is often consequent because divorce is more disruptive than death for most people do not plan for it.

MARRIAGE AND ESTATE PLANNING

When people are married in community of property, they have an undivided fifty per cent (50%) share on the joint estate. This is the same position when spouses are married out of community of property with accrual, at the dissolution of such marriage, they will have to divide their accrued assets.

When spouses divorce, their estate gets divided according to their matrimonial regime – by dividing the accrual if they are married out of community of property with accrual, and by dividing the joint estate 50/50.

However, what happens if one of them dies during, but before the divorce is finalized? Or what happens if one of them dies a few days, months after the actual divorce?

DIVORCE – WILLS AND ESTATE PLANNING

Section 2B of the Wills Act provides that:

“Effect of divorce or annulment of marriage on a will. – If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been 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 Will only temporarily and automatically loses its legal validity with respect to provisions made to benefit your spouse, for three (3) months at most– if a spouse does not want to benefit their ex-spouse with standing the dissolution of the marriage should they die during or after the divorce- it is pertinent that they prepare a will and change it as often and as soon as possible after the divorce. Failing to do so may detrimentally affect your material interest and/or those of your heirs or beneficiaries.

Spouses engaged in divorce actions ought to be aware that, if they made bequests in their will for the benefit of their spouses, getting divorced will not cause the provisions to automatically expire. Testators are encouraged to review their wills regularly as part of their estate planning– especially during and after divorce.

THE PROVISIONS OF THE PENSION FUNDS ACT

It is not uncommon for married spouses who have pension funds to nominate their spouses to receive their death benefit in the event that they die before. The nomination works in percentages out of 100. A spouse can decide to allocate the whole death benefit, or part thereof to their spouse. The nomination form is kept on records by the respective pension fund administrator. When a spouse dies and the death benefit becomes payable, the fund’s board of trustees will determine to whom the death benefit ought to be allocated. Although the member usually completes a nomination form, such nomination is not binding on the trustees, as the benefit must be distributed strictly in accordance with section 37C.

However, it is important that a member regularly updates their nomination forms and indicate their preferred beneficiary or dependant at a particular time, because, the form remains influential and directory to the trustee in allocating the death benefits. Moreover, if after 12 months from the death of a member, the trustees cannot trace other apparent dependants, the nomination form becomes binding and the death benefits ought to be allocated according to the nomination. In the event that the nomination was never updated since the ex-spouse was nominated as the beneficiary, they will receive the benefit, something which would not have happened had the member not died especially if they are divorced.

Consequently, pension fund member spouses who divorce must be cautious to at least regularly update their nomination forms as part of their estate planning and assured destination of their pension interest.

Good things come to end, so are some marriages. Spouses engaged in divorce who have interest as to what may happen to their assets should they die during or after divorce must carefully consider their estate planning and/or the legal aspects that affect such planning if they do not intend to benefit their ex-spouse withstanding the dissolution of the marriage.

Nomination forms regarding death benefits require regular updates, further, testators are encouraged to review their wills and regularly update them as soon as possible, during and/or after divorce and be aware that the provisions of a will do not automatically expire due to divorce or death.