Introduction
Inheritance law can be a complex and sensitive issue for unmarried partners in South Africa. Unlike married spouses, unmarried partners do not automatically have rights to inherit from each other’s estates under the Intestate Succession Act or other statutory provisions. This lack of automatic protection often leads to uncertainty and disputes upon the death of a partner.
This article provides an in-depth analysis of the inheritance rights of unmarried partners in South Africa, the legal framework governing these rights, and the steps partners can take to protect their interests.
Legal Framework Governing Inheritance Rights of Unmarried Partners
The Intestate Succession Act (No. 81 of 1987)
Under South African law, the Intestate Succession Act regulates how the estate of a person who dies without a valid will is distributed. The Act provides for the distribution of assets to a surviving spouse, descendants, and parents but does not recognise unmarried life partners as automatic heirs.
The Maintenance of Surviving Spouses Act (No. 27 of 1990)
This Act gives certain protections to surviving spouses in terms of maintenance from the deceased estate but excludes unmarried partners from such rights unless they were married or in a civil union.
The Wills Act (No. 7 of 1953)
South Africans have the freedom to make a will to determine how their estate is distributed upon death. A valid will can include provisions to benefit an unmarried partner.
Do Unmarried Partners Have Any Inheritance Rights Without a Will?
Without a will, an unmarried partner has no automatic right to inherit from their partner’s estate. The estate will be distributed to:
- Surviving spouse (if any);
- Children or descendants;
- Parents;
- Siblings and other relatives.
Unmarried partners are not recognised under intestate succession and will be excluded unless specifically provided for.
Claims by Unmarried Partners Against Deceased Estates
While the law excludes unmarried partners from automatic inheritance, they may bring claims for maintenance from the deceased’s estate under certain circumstances. These claims are governed by common law principles and depend on factors such as:
- Financial dependence on the deceased;
- Length and nature of the relationship;
- Contributions made during the relationship;
- The reasonable needs of the surviving partner.
Such claims are discretionary and require legal proceedings, often involving complex evidence and assessment.
Protecting the Inheritance Rights of Unmarried Partners
1. Drafting a Valid Will
The most effective way for unmarried partners to protect their inheritance rights is by drafting a valid will that clearly includes their partner as a beneficiary.
A will should specify:
- Assets or percentage of the estate to be left to the partner;
- Appointment of the partner as executor or beneficiary of life insurance and retirement funds;
- Provisions for minor children, if applicable.
2. Nomination of Beneficiaries
Unmarried partners should ensure they are nominated as beneficiaries on:
- Pension funds;
- Retirement annuities;
- Life insurance policies; and
- Other financial instruments.
3. Cohabitation and Other Agreements
While cohabitation agreements primarily regulate property and financial arrangements during life, they can also include provisions relating to inheritance intentions.
Succession Planning and Estate Administration Considerations
- Estate Planning: Early and comprehensive estate planning is crucial to ensure the partner’s interests are protected.
- Executor Appointment: Naming a trusted executor in the will can facilitate smooth administration.
- Avoiding Disputes: Clear documentation helps reduce disputes and litigation after death.
- Tax Implications: Estate duty and capital gains tax considerations should be factored into planning.
What Happens if There Is No Will?
If an unmarried partner dies without a will (intestate), their estate will be distributed according to the Intestate Succession Act. The surviving partner will not inherit unless they qualify as a spouse under marriage or civil union laws.
Conclusion
Inheritance rights for unmarried partners in South Africa are limited without proactive legal planning. The law does not automatically recognize unmarried partners as heirs, exposing partners to the risk of disinheritance. However, by drafting a valid will, nominating beneficiaries, and engaging in comprehensive estate planning, unmarried partners can secure their inheritance rights and provide financial security for one another.