When a couple enters divorce proceedings, each of them would do well to make a will, or update an existing one, if they do not want their spouse to inherit their estate.
When should a will be made in general?
A will is a legal document in which the testator determines who his heirs will be and how his property will be divided among them after his death.
As a rule, there is no obligation to make a will. In the absence of one, an inheritance order can be issued and the deceased’s estate divided under the intestacy rules set out in the Inheritance Law, 5725-1965. Broadly, these rules provide that the deceased’s property is divided equally between his spouse and his children (and in equal shares among the children).
A will is therefore worth making when the testator wants his property distributed after his death in a way that departs from the Inheritance Law: for example, when he wants all of his property to pass only to his spouse, or only to his children, or when he wants a specific asset, such as his home, to go to one particular heir, and so on.
Why make a will during divorce proceedings?
As noted, the intestacy rules provide that a person’s estate is divided after his death between his spouse and his children.
So as long as spouses in the middle of a divorce are still formally married, even if only on paper, they can inherit from each other under the Inheritance Law. Divorce proceedings often drag on for years, so this is a real possibility. Anyone who wants to prevent the spouse they are divorcing from inheriting from them under the Inheritance Law should make a will that states explicitly that their property will not pass to that spouse.
Second, if the testator’s children are still minors at the time of his death, control of the children’s share of his estate passes to their guardian, that is, to their other surviving parent, under Section 14 of the Legal Capacity and Guardianship Law. If the testator does not want the spouse he is divorcing to control the money he leaves his children, he can make a will appointing a trustee to manage the property he leaves them until they reach a certain age. He can also set out in the will instructions for how the trust is to be managed and how the estate funds are to be invested.
Why update a will after divorce proceedings?
When one of the spouses made a will during the marriage, before the divorce proceedings, while relations between the parties were still sound, in most cases that will leaves part of his property to his spouse.
If the will is not updated after the divorce, the result is that the former spouse remains entitled to inherit under it, even though the two no longer share a life.
To prevent that outcome, the old will should be revisited and a new will drawn up in its place, one that does not include the former spouse among the heirs. As a practical matter, it is best to revoke the old will and state explicitly in the new one that the old will is null and void.
What happens when the divorce agreement and the will conflict?
A will determines how a person’s property is distributed after death, while a divorce agreement can include provisions on how the property shared with the spouse is divided while both are alive.
Some divorce agreements, however, approved and given the force of a judgment under the Property Relations Law, 5733-1973, also include clauses that take effect on the death of one of the spouses. For example, where the spouses share a residential apartment, some divorce agreements provide that if one spouse dies before the other, his rights in the shared apartment pass to the surviving spouse.
If that spouse also made a will with a similar provision, no problem arises. But what happens when one of the spouses made a will providing otherwise, directing that his rights in the apartment pass not to the other spouse but to someone else, say, one of his children? Which of the two contradictory provisions prevails: the divorce agreement or the will?
As of 2022, the rulings of Israel’s family courts on this question are themselves contradictory and inconsistent.
There is case law holding that the will’s provisions prevail over the divorce agreement, and case law holding the opposite, that the divorce agreement prevails over the will.
The line of rulings favoring the will rests on Section 8 of the Inheritance Law, 5725-1965, which provides:
“8. Transactions in a future inheritance.
- An agreement regarding a person’s inheritance, and a waiver of his inheritance, made during that person’s lifetime, are void.
- “A gift that a person gives so that it will pass to the recipient only after the giver’s death is not valid unless made in a will under the provisions of this law.”
On its face, this section says that provisions concerning a person’s estate can be made only in a will. So where a person has made provisions concerning his estate in any agreement, including a divorce agreement approved under the Property Relations Law, those provisions have no effect and are void, being contrary to Section 8 of the Inheritance Law.
On the other hand, there is case law holding that the provisions of a divorce agreement approved under the Property Relations Law prevail over the Inheritance Law, relying on the external rules of interpretation, under which a specific law (the Property Relations Law) prevails over a general law (the Inheritance Law) and a later law (the Property Relations Law) prevails over an earlier one (the Inheritance Law), as well as on the internal interpretation of the Inheritance Law itself.
Given all this, and since the case law on conflicts between a divorce agreement and a will is not uniform or unambiguous, the best course is to avoid drafting these documents with conflicting provisions in the first place, or, where needed, to amend the will after the divorce agreement is drawn up.
