In our modern times, many men and women are opting to co-habitate instead of getting married. In the past, this caused a bit of an uncomfortable situation when one of the partners’ unexpectantly passed away and did not make provision to care for his/her life partner. This meant that if there was no will, the survivor would not be considered an heir of the deceased partner’s estate in terms of the Intestate Succession Act 81 of 1987. This was due to fact that opposite-sex life partner’s do not fall within the ambit of the definition of “spouse” in terms of the Act.

However, this position changed due to a recent decision in Bwanya v. Master. The Western Cape High Court was faced with two important questions. Whether a heterosexual life partner will qualify as a “spouse” for purposes of claiming maintenance in terms of the Maintenance of Surviving Spouses Act or alternatively whether he/she may be entitled to inherit from his/her life partner due to the fact that he/she qualifies as a “spouse” in terms of the Intestate Succession Act.

The Court confirmed that the issue of maintenance was set out explicitly in our law and therefore would not be considered. The current laws governing the death of a person who has not left a will states:

“If after the commencement of this Act a person (hereinafter referred to as the ‘deceased’) dies intestate, either wholly or in part, and- (a) is survived by a spouse, but not by a descendant, such spouse shall inherit the intestate estate”

The wording of the section was brought under scrutiny as the constitutionality of what is meant by “spouse” was challenged. After an extensive deliberation by the court, it was decided that this section of the Act is “unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent opposite-sex life partnership from inheriting in terms of the Act”. The court further stated that the following be read after the word spouse:

“…spouse or a partner in an opposite-sex life partnership in which the partners had undertaken reciprocal duties of support”

This means that the question to be considered is whether partners in an opposite-sex life partnership have a reciprocal duty towards one another. Should there be grounds to prove that such a duty of support exists between the partners, the surviving partner will be considered to fall within the definition of a “spouse” for purposes of intestate succession. This does not have to be financial in nature. An undertaking by the partners to support one another, for example taking care of the household or emotionally supporting each other, will suffice.

This may put partners in opposite-sex life partnerships at ease, but the drafting of a proper co-habitation agreement and will can prevent unnecessary legal costs and stress. You are welcome to consult us in this regard.

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)

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