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DIVORCE & YOUR WILL
What Happens If You Do Not Update Your Estate Plan
✎ By Gittins Attorneys · ⌛︎ 8 min read · ➤ 13 August 2026
This is the second instalment in our four-part newsletter series on estate and succession planning. Last week, we covered the basics of estate planning: what shapes the size of your estate and the tax consequences, being estate duty and capital gains tax, that every plan must account for. This week, we turn to one of the most common and most overlooked planning failures we encounter in practice: what happens to your will when your marriage ends in divorce, and what the law does, and does not, do about it.
DIVORCE DOES NOT AUTOMATICALLY CHANGE YOUR WILL
This is the point that surprises most people. When a court grants an order of divorce, it dissolves the marriage. It does not, however, revoke or alter your existing will. Your former spouse remains a named beneficiary in your will, and may remain your appointed executor or trustee, unless and until you take deliberate steps to change it.
The practical consequence is straightforward but easy to overlook: if your will names your spouse as your primary beneficiary, as your executor, or as a trustee under a testamentary trust, those provisions survive the divorce entirely unchanged. The fact that the relationship has ended has no automatic legal effect on what your will says.
This means that if you die after your divorce without having updated your will, your former spouse may be entitled to inherit your estate and to administer it as your executor, exactly as if the marriage had never ended.
THE THREE-MONTH WINDOW: WHEN THE LAW STEPS IN
The Wills Act 7 of 1953 does provide some relief, but it is time-limited and conditional. Section 2B of the Act creates a three-month window following the dissolution of a marriage by a court.
If you die within three months of your divorce, and your will was not changed after the dissolution of the marriage, the law steps in and treats your former spouse as though they had died before the dissolution of the marriage. The practical effect is that any benefit your former spouse would have received under your will falls away entirely, as if they were already deceased when the will was made. This applies equally to bequests left to your former spouse and to appointments, including their appointment as your executor or as a trustee under your will.
This provision is a protective mechanism. The legislature recognised that in the immediate aftermath of a divorce, a person may not have had a reasonable opportunity to attend to their affairs. The three-month window gives effect to what is most likely the testator's true intention, namely that the former spouse should no longer benefit, without penalising the testator for not having had the time to change the will.
WHAT HAPPENS AFTER THREE MONTHS
The protection offered by section 2B falls away entirely once three months have passed since the dissolution of the marriage.
If you survive your divorce by more than three months and have not changed your will, the law makes no further adjustment on your behalf. Your former spouse remains a full beneficiary under your will, and the Wills Act 7 of 1953 does not intervene.
The reason for this is a legal presumption that operates once the three-month window has closed: if you had sufficient time to reconsider your will and chose not to do so, the law takes the position that you intended to keep the provisions as they were. Put plainly, after three months, your silence is treated as a decision.
There is no automatic mechanism that removes a former spouse from your will after three months, after a year, or ever. If you do not change your will, it remains as it was.
A PRACTICAL EXAMPLE
Consider the following scenario. In January 2026, John and Jane finalise their divorce. They were married for fourteen years, and John's will, made during the marriage, leaves his entire estate to Jane, appoints her as his executor, and names her as the trustee of a testamentary trust established for their children.
John is killed in a motor vehicle accident in July 2026, six months after the divorce. He never updated his will.
Because more than three months have elapsed since the divorce, section 2B of the Wills Act 7 of 1953 does not apply. John's estate is administered exactly as his will directs: Jane inherits the estate, Jane administers the estate as executor, and Jane acts as trustee of the testamentary trust for the children. This is the legal position despite the fact that their marriage ended six months before John's death.
Had John died in February 2026, within three months of the divorce, the outcome would have been entirely different. Section 2B would have operated, treating Jane as having predeceased John. The bequest to her would have lapsed, her appointment as executor would have fallen away, and the estate would have been distributed to whomever the will named as the alternative beneficiary. If the will named no alternative beneficiary, the assets for which Jane was the sole beneficiary may devolve in terms of the Intestate Succession Act 81 of 1987, which may not reflect John's intentions at all.
THE IMPORTANCE OF NAMING ALTERNATIVE BENEFICIARIES
The example above raises a further issue worth noting. If the provision for your spouse lapses, whether because of section 2B or because you have removed them from your will after the divorce, the question immediately arises: who receives that benefit instead?
If your will does not name an alternative beneficiary for those assets, or does not contain a properly drafted residue clause that catches all assets not otherwise disposed of, that portion of your estate may not be dealt with by your will at all. Where a will fails to dispose of part of an estate, that portion is distributed as if there were no will, in accordance with the Intestate Succession Act 81 of 1987. The result may not align with your intentions, and it can add unnecessary complexity and delay to the administration process.
A well-drafted will anticipates the possibility that a named beneficiary may not survive the testator, and deals with the consequences expressly, either by naming an alternative beneficiary or by directing that the benefit falls into the residue of the estate.
EXECUTER & TRUSTEE APPOINTMENTS:
AN OFTEN-OVERLOOKED CONSEQUENCE
It is worth emphasising that section 2B does not only affect what your former spouse inherits. It equally affects their role in administering your estate.
If your former spouse is named as your executor, they control the administration of your estate. They have access to all estate assets, they communicate with the Master of the High Court, they settle estate liabilities, and they oversee the distribution process. This is a position of considerable responsibility and authority, and one that is entirely inappropriate in most post-divorce situations.
Similarly, if your former spouse is named as a trustee of a testamentary trust, they will exercise ongoing control over trust assets, often for the benefit of your children, for years or even decades after your death. Again, this is a position of significant ongoing power that requires careful reconsideration after any breakdown in the relationship.
Within the three-month window, section 2B removes these appointments automatically. Outside of it, they remain, and only an updated will can address them.
THINGS TO REMEMBER
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Divorce does not change your will. Unless you take deliberate action, your former spouse remains a beneficiary, executor, and trustee under your existing will.
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Section 2B of the Wills Act 7 of 1953 protects you only if you die within three months of your divorce. After that window closes, the law presumes you intended to leave your will unchanged.
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After three months, your silence is treated as a decision. The law will not intervene on your behalf.
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If your will does not name an alternative beneficiary for assets previously intended for your spouse, those assets may devolve under intestate succession and may not reach the people you intended.
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Executor and trustee appointments are affected in exactly the same way as bequests. Review both after any change in your personal circumstances.
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The right time to update your will is as soon as possible after your divorce, not when it is convenient to do so.
If your own circumstances have changed, whether through a recent divorce, a remarriage, or simply the passage of time since your will was last reviewed, now is the right time to address it. Gittins Attorneys Inc. assists clients with will drafting and review, estate planning, trust establishment and administration, and the full deceased estate administration process. If any of this raises questions about your own situation, get in touch with us – we would be glad to help you put the right plan in place.
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