What happens during a divorce if one of the spouses dies before the divorce is finalised? This depends on several factors, principally: what does their last will and testament say, what was the matrimonial property regime that governed the marriage, and had a settlement agreement already been completed between them.

Many spouses enter divorce proceedings without remembering to change their will, which may name the other spouse as a beneficiary. We always recommend that you update your will as soon as possible, and can assist you with drafting this. We also remind you that your spouse may be the named beneficiary in other policies like life insurance, which require you to contact those institutions directly to change this.

Your will sets out what you want to happen to your deceased estate, but the matrimonial property regime is the main driving force as to how the deceased estate can be wound up and affects what is available to distribute to beneficiaries, unless the parties have completed a signed settlement agreement which is binding on their estate (and relevant third parties) which can then be enforced by the executor of your deceased estate according to what was agreed upon between you and your spouse.

This is important because freedom of contract means that spouses can agree upon different ways to divide up their respective estates during divorce which do not strictly correlate with their matrimonial property regime. Our offices always ensure that there is a clause in our settlement agreements which addresses this so that the executor can give effect to what the intentions of the spouses were in settling their divorce.

Spouses married out of community of property and without accrual will only really encounter difficulties with jointly owned assets (like immovable property). Spouses married out of community of property and with accrual may have an accrual claim against the deceased estate, or the deceased estate may have a claim against the other spouse, as calculated using the values of their estates as at the date of death.

Spouses married in community of property have a trickier time, since there is a joint estate which must be divided up between them first before the executor can then distribute the deceased spouse’s half share of the joint property to beneficiaries.

Essentially, you first have to deal with all of the claims between the spouses in terms of their marriage to one another before you can deal with the division of a deceased estate according to the laws of succession.

If a person dies without a will, then intestate succession will apply. This makes it all the more important for you to complete a will if you are involved in divorce proceedings, as your spouse will be entitled to inherit in terms of intestate succession.

Other considerations will obviously apply to succession generally, such as that if a spouse caused the death of the other spouse then they cannot inherit. There are also various considerations that apply when minor or dependent children are involved, since they can have a claim for maintenance against the deceased estate.

It is very important for you to know what rights and claims exist in terms of your matrimonial property regime and what will happen in terms of the laws of succession. We are happy to advise you on this and to help you draft a will that best protects your interests and intentions, particularly if there are minor or dependent children involved.

For direct answers to your specific personal questions, please contact us directly.

Read more about our divorce law services.

Author – Murray Taylor

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