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If you have a life partner that you did not get married to and they die without a will or failed to provide maintenance, you have more rights after the constitutional court decision on the matter. 

The constitutional court gave parliament instruction to amend 2 acts, namely the Intestate Succession Act and the Maintenance of Surviving Spouses Act. A life partner in a permanent relationship can benefit from their partner’s estate, even if the partner fails to draw up a will or provide maintenance.

This comes after Jane Bwanya challenged the 2 aforementioned acts for discriminating on the basis of marital status.

In this case Jane had been living with Anthony for 2 years, they were engaged and were planning to get married when he unexpectedly passed away. Anthony did not have a will.

Although the act does not provide a definition of a spouse, a spouse is interpreted in common law in South Africa as being a spouse in marriage. Therefore, Jane could not inherit the home she and Anthony lived in with his estate amounting to R3 million.

Let a professional set up your will for you to make sure that it is done correctly. This will ensure that the process is smoother should something happen to you.

So why is this case important?

There are more than 3.2 million life partnerships in South Africa. Additionally, 75% of South Africans don’t have a will. Therefore, there are a lot of people that are in life partnerships and not married, that will now be able to claim for maintenance even if it was not provided for in the deceased will. 

However, if the deceased person had a will, the process is much faster and smoother. Get a will now. Not having a will makes life very difficult for your dependents after your death.

These life partners will benefit greatly once the acts have been amended to include the new case. 

The Intestate Succession Act was challenged in 2006

The interpretation of the word ‘spouse’ was challenged by the surviving life partner in a same-sex relationship. This was on the grounds of discrimination against sexual orientation. At the time of that case, South African law did not allow for same sex marriage or a way for same-sex partners to formalise their relationship. 

In this case (Gory v Kolver NO) the man was set to lose the home that he and his partner had lived in. The court ordered that same-sex partners be included in the definition of Spouse in Intestate Succession Act. Therefore, they can inherit when their life partner passes on intestate.

However, this did not apply for heterosexual partners that are not married. 

The Maintenance of Surviving Spouses Act was challenged in 2005

In this case Aaron Shandling and Ethel Robinson had lived together for 15 years at the time when Aaron died. He left her R100 000 in his estate, and left the remainder of his estate to his adult children who had immigrated to the US at the time. 

Robinson relied financially on Shandling. She asked the Constitutional Court to order the executor of the estate to admit her claim to future maintenance against the estate under the Maintenance of Surviving Spouses Act. 

However, the court decided that the Act was not applicable to life partners. They said that to get the benefits and obligations of marriage, they need to get married. And then they agree to the future obligations that marriage brings. 

Therefore, cohabiting partners could (at the time) only agree to obligations by agreement. 

Why did the court then rule in Bwanya’s favour?

It was not an easy decision for the court as 6 out of 10 judges voted in her favour. It is because the facts of the 2 cases were different. In Bwanya’s case the couple had planned to get married whereas in Ethel’s case they were not married and were not planning to get married. 

What does this mean for you if you face a similar case now?

You may request the executor of the deceased estate not to finalise the winding up of the estate until parliament has finalised the changes to the 2 acts. 

If the executor does not agree to do this, you may apply to court to inherit and claim maintenance. 

Conclusion

These changes to the 2 Acts does mean that unmarried life partners will have the right to inherit and claim maintenance from the deceased estate. However, it is still important that you both have a will to make it easier for your partner after your death. Speak to us if you are unsure if you need a will in your specific circumstance.

Last updated 7 March 2023.