CAN I INHERIT FROM MY COHABITATING LIFE PARTNER IF THEY DIE  WITHOUT A VALID WILL?

Written by Denisha Padachey 

1 September 2022

Many life partners opt not to get married nowadays for various reasons. There has been and remains a distinct difference between married spouses and cohabitating life partners in South Africa. When it comes to inheritance, this begs the question: Does opting not to get married to your life partner mean you forfeit the inheritance you might have gotten if you had decided to get married?

This article aims to highlight the differentiation between married spouses and life partners in South Africa as it pertains to inheritance and aims to set out the importance of having a valid cohabitation agreement or a will in place prior to one’s death.

WHO QUALIFIES AS A COHABITATING LIFE PARTNER IN SOUTH AFRICA?

A couple, namely two people who are in a long-term intimate relationship, whether they are an opposite-sex couple or a same-sex couple, can be deemed to be cohabitating life partners where they live together without being legally married. Therefore, if a couple is not married in terms of either the Marriages Act 25 of 1961, the Civil Unions Act 17 of 2006, or the Recognition of Customary Marriages Act 120 of 1998, the couple may qualify as life partners.

DOES COMMON LAW MARRIAGE EXIST IN SOUTH AFRICA?

As a point of departure, it is crucial to understand that South Africa’s concept of a “common law marriage” is a myth. In simple terms, this means that a life partnership in South Africa, regardless of the duration of the relationship, does not equate to a marriage in the eyes of the law. Cohabitating life partners have, therefore, not been afforded the same rights as legally married couples in South Africa, and life partners have only enjoyed fragmented judicial and legislative protection.

Moreover, it is important to note that while the Draft Domestic Partnership Bill was drafted in an attempt to rectify the situation, to date, this Bill has yet to be enacted into law. 

Due to the above, if a cohabitating life partner died intestate in South Africa, meaning without a valid will, the other cohabitating life partner could not inherit from or claim maintenance from the deceased partner’s estate.

This is because the Maintenance of Surviving Spouses Act 27 of 1990 (hereinafter “Maintenance of Surviving Spouses Act”) and the Intestate Succession Act 81 of 1987 (hereinafter “Intestate Succession Act”) only allowed married spouses to claim maintenance from and/or inherit from their deceased spouse’s estate. As such, until a recent Constitutional Court judgement was handed down, these Acts afforded no protection to cohabitating life partners.

It is however important to note that only opposite-sex life partners could not inherit from or claim maintenance from the deceased partner’s estate as per the legislation mentioned, as same-sex life partners have enjoyed intestate succession rights since 2006 as per the case of Gory v Kolver NO and Other (CCT28/06) [2006] ZACC 20. In summary, while same-sex life partners enjoyed intestate succession rights prior to the judgement discussed herein below, opposite-sex partners did not enjoy these rights due to the Maintenance of Surviving Spouses Act and the Intestate Succession Act only applying to married spouses.

WHAT DID THE COURT DETERMINE REGARDING OPPOSITE-SEX LIFE PARTNERS’ RIGHT TO INHERIT?

Bwanya v Master of the High Court, Cape Town and Others (CCT 241/20) dealt with an issue of constitutional invalidity concerning the Intestate Succession Act and the Maintenance of Surviving Spouses Act. The applicant in the matter had been in a committed intimate relationship with the deceased before his death, and the couple had intended on entering into lobola negotiations, and thus a valid customary marriage, shortly before the deceased passed away. Furthermore, while the deceased left a valid will, he had left his estate to his mother, who had unfortunately predeceased him.

In light of this, the applicant attempted to claim from the deceased’s estate, and primarily due to existing laws, the executor of the deceased’s estate rejected the applicant’s claims to inherit or be granted maintenance from the deceased’s estate. Intrinsically, the applicant challenged the constitutionality of both the Intestate Succession Act and the Maintenance of Surviving Spouses Act insofar as it discriminated against cohabitating life partners in a permanent heterosexual partnership. 

In light of the case above, the Constitutional Court found the aforementioned provisions discriminatory to cohabitating life partners. The court thus deemed that a reading into the language of the Intestate Succession Act and the  Maintenance of Surviving Spouses Act was necessary. The term “survivor” in the Maintenance of Surviving Spouses Act should now be read to include “a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate”. Moreover, wherever the term “spouse” occurs in the Intestate Succession Act, the words “or partner in a permanent life partnership in which the partners have undertaken reciprocal duties of  support” should be read in. It is clear that the Constitutional Court’s intention was for intestate succession rights to apply to both opposite-sex life partners as well as same-sex life partners.

While the court provided the abovementioned reading, the court elected to suspend the order(s) of invalidity. The reason, therefore, is that Parliament has been

provided with 18 months to enact legislation to remedy the constitutional defects in the acts above. Moreover, it must be noted that the reading provided in the judgment does not provide for an automatic entitlement but rather the opportunity for a cohabitating life partner to prove their entitlement, i.e., that a permanent life partnership existed and that a reciprocal duty of support existed between the partners. 

WHY DO LIFE PARTNERS NEED A VALID COHABITATION AGREEMENT OR WILL?

While Parliament attempts to remedy the aforementioned defects, the potential still exists for conflict to arise where inheriting from a life partner is concerned. One should thus be cognizant of existing mechanisms that protect life partners and allow them to inherit equitably from the estate of their significant other. These mechanisms include having a valid cohabitation agreement or a valid will. 

In layperson’s terms, a cohabitation agreement is a legal agreement entered into by cohabitating life partners that can be tailored to suit the needs of said couple. The agreement provides certainty and structure for a life partnership, can record the status of the relationship and can include specific undertakings from each party in the relationship concerning maintenance and support while also regulating specific proprietary affairs. Having a valid will in place can also ensure that the beneficiaries, i.e., a permanent life partner, can inherit according to the deceased’s wishes, as a valid will is binding and enforceable upon death.

CONCLUSION

Should you require assistance drafting a co-habitation agreement or testament that is tailor-made to suit your needs or assistance with claiming inheritance from a life partner’s estate, do not hesitate to contact Burger Huyser Attorneys’ family law specialists  and experienced cohabitation lawyers  in South Africa.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE