Written by: Denisha Padachey
30 May 2024
Cohabitation and the Law In South Africa
With evolving South African case law, questions and disputes often arise over whether a cohabiting partner is entitled to inherit from their deceased partner’s estate. This uncertainty highlights the importance of having a cohabitaion agreement, understanding and securing legal mechanisms to protect both partners’ rights in cohabitation relationships are vital. To mitigate potential conflicts, it’s vital to consider two key documents: a cohabitation agreement and a last will and testament. Each serves a unique role in estate planning and can significantly influence inheritance rights and asset distribution. By understanding these tools, cohabiting partners can better plan for the future and avoid potential legal disputes.
What Is A Cohabitation Agreement?
In simple terms, a cohabitation agreement is a legal document entered into by cohabitating life partners. Cohabitating life partners” refer to an unmarried couple, regardless of gender, who live together, are in a long-term committed relationship, and have no intention of entering into a legally recognised marriage in South Africa.
A cohabitation agreement can regulate various aspects of a cohabitation relationship. In essence, the agreement assists cohabitating life partners with regulating their respective assets and liabilities, their proprietary rights, and any other aspect that may arise concerning their domestic relationship. Knowing what the legal rights & protection for cohabiting couples in South Africa are empowers couples to make informed decisions.
What Is A Last Will And Testament?
A last will and testament, in simple terms, regulates the wishes and intentions of a testator (for a man) or testatrix (for a woman) upon their death. More specifically, a last will and testament and the standard clauses of a last will and testament , sets out how and to whom a testator/testatrix’s estate should devolve.Â
What Is The Difference Between A Cohabitation Agreement And A Last Will And Testament?
While there is certainly an overlap in the content contained in a cohabitation agreement and a last will and testament, the documents do not necessarily regulate all the same aspects in respect of a cohabitation relationship. It is, therefore essential to understand that a cohabitation agreement and a last will and testament are separate legal documents and may serve different purposes, such as:
A cohabitation agreement governs the domestic relationship between cohabitating life partners during the existence of their relationship, upon the termination of their relationship, and upon the death of one partner.
A last will and testament, on the other hand, only regulates a testator/testatrix’s wishes in the event of their passing.
A last will and testament, as well as a cohabitation agreement, are separate legally binding documents, provided that the said documents comply with the prescribed formalities. While both documents are valid and legally binding, a cohabitation agreement takes effect from the date it is signed, whereas a last will and testament only come into force upon the passing of the testator/testatrix.
Is It Necessary To Enter Into And Sign Both A Cohabitation Agreement And A Last Will And Testament Before Death?
Although parties are not legally required to have both a valid and legally binding cohabitation agreement and last will and testament, this is recommended for comprehensive estate planning. Having one or both documents in place before death can help regulate the deceased estate and how assets are distributed and ensure that a person’s wishes are respected.
Where there is no valid last will and testament, the deceased person’s estate will devolve according to the rules of intestate succession. In this case, an unmarried cohabiting life partner will not inherit from the estate under the relevant rules and legislation governing intestate succession.
What Happens If A Last Will And Testament Conflicts With A Cohabitation Agreement?
While one might assume that a last will and testament as a testamentary documentwould take precedence over a cohabitation agreement where contradiction(s) exist, the answer is not that straightforward.
There is no clear-cut answer as to whether a last will and testament will, in all circumstances, supersede a cohabitation agreement in cases of contradictory content. Therefore, consulting with an cohabitation attorney in instances where contradictions exist between these documents is often necessary to determine the appropriate course of action.
Various factors need to be considered, and in the majority of the circumstances where the content of a last will and testament conflicts with a cohabitation agreement, intervention from the Master of the High Court and/or a competent court within the correct jurisdiction will be necessary. For instance, a cohabitation agreement may assist the surviving partner in instituting and proving a claim against the deceased partner’s estate. However, where the deceased partner’s last will and testament conflict with the cohabitation agreement, there are legal guarantees such a claim would be awarded, and once again the intervention of a competent court will be required.Â
Need Assistance in Protecting Your Rights With Cohabitation Agreements and Wills? Contact Burger Huyser Attorneys Today
A cohabitation agreement and a last will and testament serve distinct yet complementary roles in estate planning for cohabiting partners in South Africa. Having one or both documents in place can help ensure that your wishes are respected, your assets are protected, and potential disputes are minimised. It is crucial to align these documents to prevent unnecessary litigation and to provide clear guidance on your intentions.
If you need assistance drafting a cohabitation agreement or a last will and testament tailored to your needs, or if you require guidance on any legal disputes involving these documents, or need to ensure your interests are well protected, Contact Burger Huyser Attorneys to schedule an appointment with one of our experienced and skilled family law attorneys.
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton callÂ
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
