INHERITING FROM A LIFE PARTNER

Can I inherit or claim maintenance from my life partner’s estate?

A life partnership or domestic partnership can be defined as a long-term, intimate relationship that is akin to marriage without this relationship being formalised in law.  South African law has no legislation which regulates domestic partnerships and has been slow to develop protection for these partnerships. This has resulted in people living in life partnerships being excluded from the benefits which automatically attach to a marriage or civil union even though they are often substantially the same. For a general introduction to life partnerships and how they are regulated, see our article: https://bissets.com/2020/02/how-does-the-law-provide-you-with-protection-in-your-relationship/

The recent Constitutional Court case of Jane Bwanya v The Master of the High Court, Cape Town CCT241/20 concerned one such discrepancy between a marriage or civil union on the one hand, and a domestic partnership on the other. The applicant, Ms Bwanya, approached the High Court with a claim for inheritance and maintenance as a surviving spouse from her life partner’s estate. Ms Bwanya’s claim had been rejected by the executor administering the deceased’s estate on grounds that benefits are conferred only on married couples and not life partnerships.

Ms Bwanya and Mr Ruch (the deceased) had been in a life partnership since 2014, and were engaged in 2015. They were amid preparations for Lobola negotiations when Mr Ruch passed away in 2016. Mr Ruch had provided financial support to the Ms Bwanya and she had provided care, companionship and support in return. The deceased’s will was regarded as invalid as the sole heir to his entire estate was his predeceased mother, so his estate was being administered in terms of intestate succession.

The Constitutional Court ruled that the Intestate Succession Act 81 of 1987 was unconstitutional insofar as the definition of ‘spouse’ omits the words ‘and includes the surviving partner of 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’s partner’s estate’.

The Constitutional Court also found that the definition of ‘spouse’ and ‘marriage’ in the Maintenance of Surviving Spouses Act 27 of 1990 should be extended to include a person in a permanent life partnership.

The invalidity of both of these sections has been suspended to enable Parliament to take steps to cure the constitutional defects in the legislation.

Conclusion

This ruling is an important step in the legitimisation of life partnerships in South Africa. Questions do arise regarding how to practically define a life partnership. For example, one may ask whether there is a minimum length of time that a couple must have been living in a life partnership before legal consequences will attach to the relationship. 

Currently, the South African Law Reform Commission has produced a draft bill on Domestic Partnerships, but this Bill has not been passed since it was produced in 2006. It would be preferable for life partnerships to be regulated comprehensively through legislation such as the Domestic Partnerships Bill instead of through piecemeal recognition by the Courts.

To avoid any unintended consequences or expense, individuals living in a life partnership should ensure that they have a valid will and that their relationship has been provided with all the necessary legal protection.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E & OE).

Written by: Unathi Mayekiso – Candidate Attorney

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