Are Life Partners Entitled To Inheritance In South Africa?

In South Africa, life partners — unmarried cohabitants in a permanent life partnership — are not automatically entitled to inherit from each other under the Intestate Succession Act 81 of 1987, which by default recognises only legally married spouses, descendants, ancestors, and other blood relatives as intestate heirs. Constitutional protection has changed the position: under the Constitutional Court’s decisions in Bhe v Magistrate, Khayelitsha and the Mkize line, a permanent opposite-sex or same-sex life partner may inherit as a “spouse” from an intestate estate, but only where there is no surviving legal spouse and only on the Master’s discretion. A valid will remains the only way to guarantee a life partner an unambiguous inheritance right.

The Default Rule: Life Partners Are Not Intestate Heirs

The Intestate Succession Act 81 of 1987 sets out the order in which an estate devolves when there is no valid will. Section 1 read with the Act’s intestate heir schedule identifies the categories who inherit by operation of law: spouse, descendants, parents (where there are no descendants), siblings and their descendants (where there are no parents), and more distant blood relatives.

“Spouse” in the Act has historically meant a person married to the deceased by a legally recognised marriage — not a cohabiting life partner, whether opposite-sex or same-sex. The result is that, in the default case, a life partner is not on the heir list at all and inherits nothing from an intestate estate.

Order of intestate succession	Who inherits
1	Surviving legally married spouse (sole or shared with descendants)
2	Descendants of the deceased
3	Parents of the deceased (if no descendants)
4	Siblings and their descendants (if no parents)
5	More distant blood relatives
6	The state (as last resort)

Notice that a life partner does not appear anywhere in this chain. That is the default rule from which everything else flows.

The Constitutional Override: Bhe, Mkize, and the “Spouse” Door

Two lines of Constitutional Court judgment have re-opened the door for permanent life partners.

• Bhe v Magistrate, Khayelitsha (2004) and parallel cases declared the Intestate Succession Act’s exclusion of certain categories unconstitutional to the extent it excluded permanent life partners from being recognised as intestate heirs.
• Mkize v Minister of Justice and the related Laubscher and Motswagae judgments extended this protection to opposite-sex life partners on the same constitutional basis.

The practical effect is that a permanent life partner can be recognised as a “spouse” for intestate succession purposes — but only where the deceased left no legal spouse, and the recognition operates through the Master’s discretion and (if disputed) court determination, not as an automatic right. The protection is therefore real but conditional, and narrower than the inheritance right of a legally married spouse.

Who Qualifies as a Life Partner for Intestate Succession

The courts and the Master look for a permanent, exclusive, life-partnership-type relationship akin to marriage — not a casual cohabitation. Indicators weighed include:

• Duration of the relationship (often several years)
• Whether the parties lived together under one roof
• Shared financial responsibilities (joint accounts, household expenses, bond payments)
• Whether the parties presented themselves publicly as a couple
• Recognition of the couple by family and community

A relationship of convenience, a casual dating arrangement, or a relationship where either party maintained a concurrent partnership will generally not qualify. The evidentiary burden sits with the surviving partner — they must prove the partnership on a balance of probabilities, usually through a combination of affidavits, supporting documents, and oral evidence.

What the Life Partner Inherits (and What They Don’t)

A recognised life partner who qualifies as a “spouse” inherits the child’s share that a legally married spouse would receive where there are surviving descendants — not the whole estate. The exact portion depends on the surviving heir mix:

Surviving heirs	Spouse / recognised life partner share
Spouse + descendants	Child’s share (equal to each descendant’s share)
Spouse, no descendants, parents survive	R250 000 (or such amount as the Minister may prescribe), plus the balance of the estate divided with the parents
Spouse, no descendants, no parents	The entire estate

A life partner does not automatically acquire the same ancillary protections a married spouse receives. The proprietary consequences of marriage under the Matrimonial Property Act do not apply by default, and pension-fund nominations, maintenance claims, and certain survival rights differ. The duty-of-support claim under section 7 of the Maintenance of Surviving Spouses Act 27 of 1990 is available where the deceased was married to someone else and the life partner was maintained immediately before death.

Where There’s Also a Legal Spouse: The Duty of Support

If the deceased was married to someone else, the legal spouse takes the intestate spouse share in full. A surviving life partner can then lodge a claim for maintenance against the deceased estate under section 7 of the Maintenance of Surviving Spouses Act 27 of 1990, but this is a need-based claim — not an inheritance right — and is capped at what is “reasonable” given the estate and the claimant’s needs. This is the most common cause of dispute in practice: the legal spouse and the life partner both having claims against the same estate.

What Happens to the Estate if There’s No Spouse, Descendant, or Parent

The estate devolves to the deceased’s siblings (or their descendants if a sibling has predeceased), then to more remote blood relatives, and only as a last resort to the state. A life partner is not in this chain at all — if there are blood relatives, the life partner inherits nothing. This is the point most life partners discover too late: the assumption that “they’ll look after me because we lived together” has no basis in the default statutory scheme.

The Practical Problem: Proving the Life Partnership

Unlike a marriage certificate, there is no public register of life partnerships in South Africa — a life partner must assemble proof from scratch after the death. Useful evidence includes:

• Shared lease or bond documents
• Joint bank accounts
• Utility bills at the same address
• Medical aid membership naming each other as dependants
• Insurance policies
• Photographs and social media evidence
• Affidavits from family and friends
• Religious or cultural ceremonies of union

The Master (or court, on objection) weighs the totality — no single document is decisive, and a weak evidentiary record can defeat an otherwise genuine claim. The Gauteng Division’s 2023 judgment in Lindeni v Master of the High Court, Johannesburg is a useful illustration of how the Master and court approach evidence of a permanent life partnership in practice.

The Will Trap — Why “We’ll Do It Later” Costs the Survivor

A valid will is the cleanest, most certain way for a life partner to inherit. It overrides the default intestate regime and lets the testator direct the estate as they wish, subject to the dependants’ maintenance claim under section 2 of the Maintenance of Surviving Spouses Act, which protects spouses and certain dependants from disinheritance.

Common failure modes include:

• Couples assuming “common law marriage” applies — it does not in South Africa; there is no such thing as automatic marriage by cohabitation
• Assuming a life-insurance payout will cover them — it covers nominated beneficiaries only
• Assuming joint ownership of the home will pass automatically — joint ownership with survivorship only applies to specific assets and registration forms

If there is no will and no qualifying life-partner recognition, the estate passes to family the deceased may never have wanted to benefit — and the surviving partner is left with no automatic right to remain in the family home.

Drafting a Will That Protects Your Life Partner

A will can bequeath any portion of the estate to a life partner — from a specific asset (the home, a vehicle, a sum of money) to the entire residual estate. It also lets the testator name the life partner as executor, set up a testamentary trust for ongoing protection, and nominate beneficiaries for policies and retirement funds.

The dependants’ maintenance claim under the Maintenance of Surviving Spouses Act can be raised against the estate by any “surviving spouse” — and case law has extended this to permanent life partners in some circumstances. This is why leaving “reasonable provision” in the will for the life partner reduces the risk of a successful claim against the estate by other family members.

Estate Planning Beyond the Will

Antenuptial-style alternatives are not available for life partners because the Matrimonial Property Act only applies to married couples — but the same protective outcomes can be achieved through other mechanisms:

Mechanism	What it does
Joint ownership with right of survivorship	Passes the asset to the surviving co-owner without going through the estate (where the asset type permits)
Pension / provident fund beneficiary nomination	Directs the fund benefit outside the estate to the named partner
Life insurance beneficiary nomination	Directs the policy payout outside the estate
Life partnership agreement	Not legally regulated, but evidence-creating and useful for later proof of the partnership
Inter vivos trust	Holds the family home or key assets under trust terms you set while alive

Burger Huyser Attorneys’ Wills & Estates practice covers drafting of wills, the creation of testamentary and inter vivos trusts, and the nomination-side advice that complements a will for life partners. Director Anna-Mi Nel, who heads the firm’s Family Law Department and specialises in deceased estates, leads this work alongside the firm’s dedicated Deceased Estate Administrator.

Administration Through the Master of the High Court

Deceased estate administration in South Africa runs through the Master of the High Court, not the Magistrate’s Court — the Magistrate’s Court has no jurisdiction over the winding-up of a deceased estate. The Master operates in each jurisdictional seat, with provincial offices in Pretoria, Johannesburg, Cape Town, and elsewhere. Each deceased estate is lodged at the Master’s Office for the area where the deceased was ordinarily resident at death. The Master’s role is to supervise the appointment of an executor, validate the will (if any), and ultimately issue letters of executorship that allow the estate to be wound up.

Where there is no will and the question of whether a life partner qualifies as an intestate heir arises, the Master is the first decision-maker before any court is approached. The Master may determine the partnership question administratively or, where there is objection from other heirs, refer the matter to the relevant High Court division — historically the Gauteng Division, Johannesburg or Pretoria seat, for Gauteng-resident estates. The Constitutional Court’s Bhe and Mkize line, applied through the Master’s discretion and the High Courts, is what gives a permanent life partner any intestate inheritance right at all.

Frequently Asked Questions

Are life partners entitled to inherit in South Africa if there is no will?

Only conditionally. Under the Intestate Succession Act 81 of 1987, a life partner does not inherit by default — the estate passes to a legally married spouse (if any), then descendants, parents, and other blood relatives. After the Constitutional Court’s decisions in Bhe and Mkize, a permanent opposite-sex or same-sex life partner may be recognised as a “spouse” for intestate succession purposes, but only where the deceased left no legal spouse and only at the Master’s discretion.

What does a life partner inherit compared to a married spouse?

A recognised life partner who qualifies as a spouse inherits the same child’s share a legally married spouse would receive where there are surviving descendants — they do not receive the entire estate. A life partner does not automatically acquire the ancillary protections of marriage (matrimonial property regime, certain pension and maintenance rights), which is why a will remains the cleanest protective mechanism.

What if my partner was still married to someone else when they died?

The legal spouse takes the full intestate spouse share. As a life partner, you can lodge a claim for maintenance against the deceased estate under section 7 of the Maintenance of Surviving Spouses Act 27 of 1990, but this is a need-based claim against the estate, not an inheritance right — and it is limited to what is reasonable given the estate and your circumstances.

How do I prove we were in a permanent life partnership?

There is no public register of life partnerships in South Africa. Useful evidence includes shared lease or bond documents, joint bank accounts, utility bills at the same address, medical aid membership naming each other as dependants, insurance policies, photographs, affidavits from family and friends, social media evidence, and any cultural or religious ceremony of union. The Master (or a court, if the matter is disputed) weighs the totality of the evidence on a balance of probabilities.

We were going to draft a will “later” — what happens if my partner dies first without one?

Without a will, the estate devolves under the Intestate Succession Act. If there is no legal spouse, no descendants, and no surviving parents, the estate passes to the deceased’s siblings or their descendants — not to you. A valid will is the only certain way to make sure you inherit, and it lets your partner name you as executor, direct specific assets to you, and set up a trust for ongoing protection. Drafting one now is far cheaper and faster than the dispute that follows dying without one.

Can we get the same protection as a marriage without getting married?

Not automatically. South African law does not recognise a “common law marriage” by cohabitation. You can, however, achieve the same protective outcomes through a combination of a valid will, beneficiary nominations on pension and insurance policies, joint ownership of major assets where the asset type permits survivorship, and (where appropriate) an inter vivos trust. A life partnership agreement, while not legally regulated, also serves as evidence of the partnership if it needs to be proved later.

If you are an unmarried life partner and want to make sure you are protected when the other dies — or you are the surviving life partner of someone who has just died without a will and need to understand where you stand — Burger Huyser Attorneys’ Wills & Estates team can help. The firm drafts wills that secure a life partner’s inheritance, administers deceased estates through the Master’s Office in the relevant jurisdiction, and runs disputed partnership or heir claims through the High Court where the matter cannot be resolved administratively. Contact the Linden (Randburg) head office on 011 888 0246 or your nearest Gauteng branch to book a first consultation, and bring your ID, the deceased’s death certificate (if applicable), and any documents that evidence the partnership. The firm holds a 4.8/5 Trustindex-verified rating across 250+ Google reviews.