Why unmarried partners need a Will

Many couples reside together in permanent relationships that would be akin to what is recognised in some countries as “common law” spouses, but historically South African law has failed to recognise domestic partnerships as having the same legal validity as married couples for the purposes of the laws of inheritance.

Therefore, if a partner in a heterosexual domestic partnership dies without leaving a valid Will, the partner has had no legal right to inherit under provisions of the Intestate Succession Act 81 of 1987.

The Intestate Succession Act determines how the deceased’s estate will be divided between spouses, children and next of kin. This division by operation of the law is only applicable to the extent there is no valid Will. In most instances, the estate is divided between the spouse and descendants, depending on the value of the estate. If there are no spouses or descendants, the estate is divided between living family members in proportions determined by the Intestate Succession Act.

However, if the deceased had a valid Will, they would be able to leave their estate to their partner, or any beneficiary of their choosing. But in the event that a person dies without leaving any inheritance to their partner, the laws of intestacy would be applicable, and their blood line next of kin would inherit their estate in accordance with the Intestate Succession Act.

There have been many instances where engaged couples were to be married, and upon the death of one partner, the remaining partner was not allowed to inherit from their deceased’s partner or even fiancé’s estate. The reason for this was that they were not recognised as spouses for the purposes of intestate succession, and they were left reliant on the kindness of the blood heirs of their deceased partner.

The most recent case that adjudicated on this matter was Jane Bwanya vs The Executor of the Estate Ruch and Others, in the Western Cape Town High Court. The case had far reaching impacts on the current status of the application of the law.

In this case, the family of the deceased argued that his partner was not a spouse as they were not legally married at the time of death, and that consequently, she could not inherit from his estate.

Domestic partnerships have been given some measure of recognition in South Africa, but to date they rely on a measure of proof with the burden of evidence on the surviving partner. The partner would be required to show that they had contracted into a domestic partnership agreement, or that they had reciprocal duties of support and contribution towards a common household. This resulted in protracted costly legal battles about the various financial contributions of the parties if there was no contract. Very often this resulted in surviving partners resolving to inherit nothing rather than litigate against the family of the deceased.

This position is to be contrasted with same sex couples, who were previously accorded the right to claim spousal rights if they had a common shared household with reciprocal duties of support. Previously, same sex couples were not allowed to marry and with the abolition of this archaic regime, and the introduction of the Civil Union Act 17 of 2006, gay couples were presumably to be brought under the same legislatory framework as opposite sex partners. For now, however, same sex partnerships are still accorded intestate succession rights, although they now have the option to become married. Unmarried same sex partners would still be advised to enter into formal domestic partnership agreements, or draw up Wills indicating their wishes, so that their intentions are clear.

Opposite sex partners on the other hand, have to clarify their intention by bequeathing inheritances to each other in a Will, as they will not inherit from each other by the automatic operation of the law.

The draft Domestic Partnership Bill was published in 2008 and is intended to address the shortcomings of the current legal position and to bring legislation in line with evolving societal norms. This bill has not been promulgated as yet.

It has been conceded that the laws are prejudicial to couples in permanent relationships who do not marry. In a revolutionary judgement, the Western Cape Town High Court declared the Intestate Succession Act to be unconstitutional. The Constitutional Court is to rule on the declaration of invalidity of the Intestate Succession Act.

The Maintenance of Surviving Spouses Act 27 of 1990, which fails to accord domestic partners with the right to receive support from the deceased estate, will too be brought under the spotlight in the examination of the constitutionality of the laws that are considered to be out of date.

All domestic partners, whether same or opposite sex, are urged to have Wills drafted to ensure that their wishes are properly recorded, and not left to chance or operation of laws that are undergoing evolution in line with changes in our living circumstances.