Your divorce is final. Is your will?

• Divorce does not automatically remove an ex-spouse from your Will after the three-month statutory protection expires.
• Section 2B provides only a temporary safeguard before your original Will becomes legally enforceable again.
• Legal experts urge newly divorced individuals to update their Wills immediately to protect their intended beneficiaries.

Divorced? Your ex could still inherit your estate‍

Section 2B of the Wills Act gives divorced spouses only three months to update their Will before an ex-partner can legally inherit again.

Thousands of South Africans finalise their divorces every year, believing that once the decree is granted, all legal ties to their former spouse automatically come to an end. When it comes to inheritance, however, that assumption can prove to be a costly mistake.

While a divorce ends a marriage, it does not automatically amend or revoke an existing Will. Unless a divorced individual updates their estate planning documents within the statutory grace period, an ex-spouse could still legally inherit from their estate years later.

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"The question we hear most often is, 'Surely the Master of the High Court knows we're divorced?' The reality is that the Master can only administer the estate according to the Will that has been left behind," explains Charlize Byrne of Van Deventer Dowlath & Marx Inc.

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"A valid Will remains legally binding until it is revoked or amended. Section 2B of the Wills Act provides a temporary safeguard while people adjust to life after divorce, but that protection disappears once the statutory three-month period expires."

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A little-known legal safeguard

‍South Africa's Section 2B of the Wills Act 7 of 1953 provides divorced individuals with a limited safety net.

Following the granting of a divorce decree, the law creates a three-month grace period during which an ex-spouse is deemed to have died before the deceased for inheritance purposes.

This means that even if an ex-spouse remains named in an existing Will, they will generally not inherit during those three months unless the Will expressly states that the former spouse should still benefit despite the divorce.

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However, Byrne cautions that this protection is temporary. "The legislation refers specifically to three months, not simply 90 days. Once that statutory period expires, the temporary protection falls away completely, and the Will is executed exactly as it is written."

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How section 2B works

‍Section 2B effectively gives recently divorced individuals a short window to update their estate planning without unintended consequences. During this period:

• An ex-spouse is legally regarded as having predeceased the deceased.
• Existing beneficiaries inherit as though the former spouse is no longer alive.
• The protection only applies if the deceased dies within three months of the divorce.
• If the Will specifically states that the former spouse should still inherit despite the divorce, those wishes will be respected.

Once the three-month period expires without any amendments to the Will, the original document once again becomes fully enforceable.

A real court case shows why timing matters

‍The importance of Section 2B was tested in the Western Cape High Court in JW v Williams-Ashman NO and Others (2020).

In this matter, a woman died within three months of her divorce without updating her pre-marriage Will, which named her former husband as sole heir. The executor applied Section 2B and excluded the ex-husband from inheriting. He challenged the constitutionality of the provision.

The court ultimately upheld Section 2B, confirming that the legislation is both rational and constitutional because it protects recently divorced individuals during the immediate period following divorce.

The judgment also highlighted the significant risk of delaying estate planning. Had the woman died after the three-month grace period without updating her Will, the statutory protection would no longer have applied and her former husband would have legally inherited her estate.

Freedom of testation remains paramount

‍According to Byrne, South African law is built on the long-standing principle of freedom of testation.

This means individuals are generally free to decide who inherits their estate, and courts are obliged to honour those written wishes.

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"The courts cannot rewrite a Will simply because circumstances have changed or because the outcome appears unfair after a divorce," she says.

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"Reviewing your estate plan is much like renewing a gym membership, it's something many people keep putting off until tomorrow. But life moves quickly. Updating your Will ensures it reflects your current wishes, not a chapter of your life that has already ended. After all, your ex should remain in your past—not in your Will."

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Urgent steps every newly divorced person should take

‍Byrne recommends acting immediately after a divorce by:

• Record the date your divorce decree was granted and calculate your statutory three-month grace period.
• Update your Will by drafting a new Will or executing a Codicil that formally removes or amends any inheritance provisions relating to your former spouse.
• Review beneficiary nominations on life insurance policies, retirement funds, pension benefits and living annuities, as these assets generally fall outside the Will and require separate beneficiary updates with the relevant financial institutions.
• Review your executor and guardianship appointments to ensure they still reflect your wishes following the divorce.
• Seek professional legal advice if your estate planning is complex or involves trusts, business interests or minor children.

Don't leave your legacy to chance

‍Divorce changes far more than a person's marital status, it can fundamentally alter their estate planning intentions.

While Section 2B of the Wills Act provides valuable short-term protection, it is exactly that: temporary.

Once the three-month grace period expires, the law will simply enforce the Will that exists, regardless of whether it still reflects your wishes.

For anyone emerging from a divorce, updating a Will should be regarded as an essential part of the legal process, not an administrative task that can wait. Failing to do so could mean that the person you intended to leave behind becomes the person who ultimately inherits your estate.

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