Marriage and Matrimonial Property

 

 

 

A Cohabitation Agreement primarily regulates your finances and property during your lifetime and in case of separation. While it doesn't grant inheritance rights itself, it can be valuable in estate administration. It can document joint assets and financial contributions, which could support a surviving partner's claims, particularly if there's a maintenance claim or complexities in the estate. However, it is not a substitute for a Will when it comes to inheritance.
 

The Judicial Matters Amendment Act is a positive step! It broadens the definition of "spouse" in the Maintenance of Surviving Spouses Act. This means you may now have a legal right to claim maintenance (financial support) from your deceased partner's estate if you were in a permanent life partnership and financially dependent. However, it does not grant automatic inheritance rights under the Intestate Succession Act. A Will is still the only way to guarantee inheritance.

Yes, a properly drafted and valid Will that clearly names your partner as a beneficiary is the most legally secure way to ensure they inherit your assets. Aucamp Attorneys can help you create a Will that is legally sound and reflects your exact wishes, minimizing the risk of challenges to your estate.
 

Generally, no. South African law doesn't automatically grant inheritance rights to unmarried cohabiting partners under the Intestate Succession Act (if there's no Will). Unlike marriage, there's no automatic legal recognition of inheritance for life partners simply because you lived together, regardless of the length of the relationship.

Unfortunately, South Africa does not recognize "common-law marriage." The length of cohabitation doesn't automatically create the same legal rights as marriage. To ensure you are provided for, proactive legal steps like creating a Will are essential.

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Cohabitation and Death 

In South Africa, when a person in a cohabiting relationship (living together unmarried as life partners, as South African law does not recognize "common-law marriage") dies, the surviving partner does not automatically inherit from the deceased's estate under intestate succession laws if there is no valid Will.  While the surviving partner may have limited rights to claim for maintenance or certain benefits as a proven financial dependant, these are not automatic entitlements.

Protecting Your Partner Through a Will: Why it's Crucial for Cohabiting Couples in South Africa

For unmarried couples in South Africa, the most secure way to ensure your life partner inherits your estate is through a well-drafted Will. While recent legal developments offer some increased protection for cohabiting partners, relying on these alone is risky. A Will remains the most direct and effective tool to guarantee your wishes are honored and your partner is provided for after your death.

Why a Will is Essential for Unmarried Partners

Take Control of Your Legacy  Without a Will, the law dictates how your assets are distributed through intestate succession.  For unmarried partners, this can mean your estate goes to blood relatives, completely excluding your partner from automatic inheritance. A Will empowers you to bypass these default rules and explicitly name your partner as your beneficiary, ensuring your assets go where you intend them to go.

More Than Just Assets: A Will is not just about who gets what. It allows you to

  • Specify Debt Handling - Clearly outline how your debts and liabilities should be managed.
  • Choose Your Executor - Appoint someone you trust to efficiently manage your estate.
  • Provide Peace of Mind - Give both you and your partner the reassurance of knowing your wishes will be respected, avoiding potential legal battles and uncertainty for your loved one during a difficult time.
Avoiding Loss of Assets to Intestate Succession

The Risks of Dying Without a Will -  If you die intestate (without a Will), South African law dictates a rigid order of inheritance that prioritizes legal family members. For unmarried couples, this can be devastating, potentially leading to:

  • Your Partner Being Excluded - Your partner may receive nothing from your estate as they are not automatically recognized as an heir under intestate succession laws.
  • Assets Going to Relatives - Your shared home, savings, and other assets could be distributed to family members, even if that was not your intention.
  • Legal Battles and Uncertainty - Your partner may face legal challenges from your family, creating stress and financial hardship during their bereavement.
  • Proactive Planning is Key - Don't leave your partner's future to chance. A Will is the cornerstone of protecting your partner from the unintended consequences of intestate succession.
 Cohabitation Agreements: Valuable, But Not a Substitute for a Will (for Inheritance)

While Cohabitation Agreements are crucial for defining financial arrangements and responsibilities during your relationship and in case of separation, they do not grant inheritance rights.

How Cohabitation Agreements Can Help with Estate Matters

  • Documenting Financial Contributions - A Cohabitation Agreement can detail each partner's financial contributions to shared assets (like property or joint accounts). This documentation can be valuable evidence to support claims made by a surviving partner during estate administration, helping to acknowledge their contributions even if they aren't the primary heir.
  • Supporting Claims - In complex estate situations, a Cohabitation Agreement can strengthen a surviving partner's position in navigating deceased estate administration, although it does not replace a Will for inheritance itself.
  • Crucially - A Cohabitation Agreement Does Not Replace a Will for Inheritance. To ensure your partner inherits your assets, a Will remains absolutely essential.
Deceased Estate Administration for Unmarried Couples: Complexity Without a Will
  • Navigating Deceased Estates Intestate -  When a cohabiting partner dies without a Will, the administration of their deceased estate becomes significantly more complex and potentially contentious.
  • Intestate Succession Rules Apply - The estate administrator is legally bound to follow the Intestate Succession Act, which, in the absence of a Will, prioritizes legally recognized family members as heirs, potentially excluding the surviving partner.
  • Legal Challenges and Delays - Without a clear Will, the surviving partner may face lengthy and emotionally draining legal processes to assert any claims, particularly if family members dispute their rights.

Your Rights as a Surviving Partner: Understanding Bwanya and Wills

The Landmark Bwanya Case: Important Progress, But Wills Remain Paramount
The Bwanya Case - A Step Forward for Maintenance Rights: The groundbreaking Bwanya vs Master of the High Court case (and the subsequent Judicial Matters Amendment Act) has brought positive change by recognizing permanent life partners' right to claim maintenance from a deceased partner's estate in certain circumstances.

Outcomes of Bwanya

  • Expanded "Spouse" Definition for Maintenance - The law now recognizes surviving partners in "permanent life partnerships" for maintenance claims.
  • Recognition of Women's Vulnerability - The Constitutional Court acknowledged the societal realities that can make women in long-term cohabiting relationships more vulnerable, influencing the legal interpretation.
  • More Equitable Support - This means a surviving partner who was in a permanent life partnership and financially dependent on the deceased may now have a stronger legal basis to claim maintenance.
  • Important Clarification - Bwanya Doesn't Change Inheritance Under Intestacy:  It's vital to understand that the Bwanya case primarily strengthens maintenance rights. It does not automatically grant cohabiting partners inheritance rights under the Intestate Succession Act if there is no Will.

Therefore, even with the Bwanya judgment, a Will remains the only way to guarantee your partner inherits your assets as you wish. The Bwanya case addresses potential maintenance support, not automatic inheritance.

Aucamp Attorneys: Protecting Cohabiting Partners Through Expert Will Drafting.

While legal landscapes are evolving, the most direct and secure way to protect your unmarried partner after your death remains creating a valid Will. Don't leave your partner's future to chance or the complexities of intestate succession.

Aucamp Attorneys can help you draft a clear and legally sound Will, ensuring your partner is taken care of according to your wishes. Contact us today for a consultation to discuss your Will and estate planning needs, and gain peace of mind knowing you've protected your loved one's future.