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The Effect of a Divorce on Your Estate Planning

A marriage will automatically revoke a pre-existing Will; a divorce will not. That does not mean that a divorce will not have an impact on your Will.

A divorce will invalidate any provisions in your Will that deal with your ex-spouse. You may tend to think that this solves the problem. However, the fact that several provisions are now invalid may make your Will incomplete or in the worst case scenario - invalid.

A separation without a separation agreement properly drawn by a lawyer has no effect on your Will. The worst case is dying after a long separation with no separation agreement. In that case the Succession Law Act takes effect, and the government in effect decides how your estate will be divided. Your (ex) spouse will get a fixed sum of money and a further share for for your children unless there are no children, then the spouse gets it all.

I have recently been in court on a matter involving an estate where the husband and wife were separated for over 25 years but, without a divorce, Twenty years ago he bought a farm, which tripled in value, which she never set foot on. They were not even civil with one another and on his death because he did not have a Will, the wife, who he strongly disliked, became a millionaire. That certainly wasn't what he wanted.

All of this could have been prevented by having a lawyer prepare a Will.

My next Blog will address other Will considerations on separation, divorce and disinheriting family members.

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