Usually, once a Will has been drafted, the maker dissociates themselves from the document, thinking the process is complete. However, with the pace at which the world is evolving and the changes in the law, there are different reasons why your Will might require a revisit. The most common reasons why you may choose to update your Will include having children, adding or disposing of assets, changing your legal heirs or executor, getting married, or getting divorced.
Though unexpected, there are undeniable effects a marriage or a divorce can have on an existing Will. For certain communities, Section 69 of the Indian Succession Act 1925 states that a Will made prior to the testator’s marriage stands revoked once the testator marries. This provision was added to protect the interests of the new family members. That’s why it is very important that you make a new Will as soon as possible after you are married.
Divorce is a draining experience in itself. It is not uncommon that people might forget to update their Will after the event and postpone it for later. However, it is critical that you take adequate action to revise your Will or any existing estate plan after your divorce to ensure financial protection for yourself and your heirs, and protect your assets from any unwarranted claims from your former spouse.
What Happens To Your Will After You Get A Divorce?
As per the current law, divorce generally does not impact the Will, unless one has made an express provision for such an event in the Will. Arranging for a new Will after your divorce may be a practical step to take, as it can prevent future legal complications for your family.
If you don’t update your Will, or die intestate (the circumstances may change, since your assets will then be distributed as per personal laws applicable to you) and your ex-spouse may become a beneficiary of your assets . If you don’t want any assets to be given to your ex-spouse, make certain to explicitly mention it in your Will.
Multiplicity Of Personal Laws
India, being a secular country, allows every individual to practice and preach the religion of their choice. This leads to multiple succession laws, which make the inheritance and process of succession very complex.
The Indian Succession Act 1925 governs the testamentary succession for Hindus, Sikhs, Jains, Parsis, and Buddhists, whereas Muslims dispense their property as per Muslim personal law, or sharia. Even marriages and divorces are regulated under different laws for each religion. Hindus, Jains, and Buddhists are governed by the Hindu Marriage Act 1955, Parsis are administered under the Parsi Marriage and Divorce Act 1936, and Muslim divorces are directed in accordance with the Dissolution of Muslim Marriages Act of 1939. In some states, Sikh marriages are registered under the Anand Marriage Act 1909. Inter-religious marriage and divorces are governed by the Special Marriage Act.
The absence of uniform inheritance laws leads to contrasting effects of divorce across religions. In most cases, a woman can demand alimony or insist on maintenance after the divorce, but cannot raise a claim on her ex-spouse’s property unless she can prove her contribution to that property through evidentiary support. Recently, the Bombay High Court in the case of Bhagyashri v Jagdish [Writ Petition Number 2527 of 2021], allowed maintenance and permanent alimony in favour of the ex-husband. The court held the provisions under the Hindu Marriage Act 1955 as gender-neutral, such that they can be invoked by either spouse.
When a man separates without obtaining a formal divorce, the wife and children are considered legal heirs, regardless of whether the husband remarries. A married daughter also has a stake in her parents’ property after a divorce. Under Muslim law, a woman is entitled to a ‘Mehr’ amount after a divorce, but does not have a claim on her deceased husband’s property.
Why It’s Important To Update Your Will After Divorce
If you don’t amend your Will after divorce, your family or children may not receive all your assets, even if they are stated as nominees against various assets, such as bank accounts. Your ex-spouse may demand an interest in your property in lieu of wishes stated in an existing Will.
It is also recommended that you change the names of the nominees in your bank after you’ve updated your Will. At all times, it is a good practice to have the nominee and the beneficiary mentioned in the Will aligned.
If you are revoking your previous Wills, you should have a statement that clearly states that all previous Wills are henceforth revoked. A Will can be updated via a codicil, which is basically an amendment to an existing Will, or you can rewrite the entire Will. The simplest and safest option is to write a new Will, because your assets and/or wishes will change significantly after a divorce.It is generally recommended that you periodically review your Will, particularly if you are someone who often has revisions in their financial and personal assets. A review of your Will is especially critical after a life-changing event like divorce, to ensure your wishes are stated clearly for the well-being of all those you love and care for.
