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Recognition of Permanent Life Partners in Intestate Succession - New Developments (T&Cs Apply!)


In South Africa, the definition and recognition of permanent life partners, especially regarding intestate succession, have undergone significant changes due to recent court decisions and legislative amendments. This article explores the current legal framework for permanent life partners under the Intestate Succession Act, 1987 (the "Act"), which highlights recent developments and the importance of proper estate planning, especially when you find yourself living together with a life partner.


Historically, the Act regulated how the estate of a person who dies without a will is distributed. If the deceased was survived by a spouse but no descendants, the spouse inherited the entire estate. If survived by descendants but no spouse, the descendants inherited the entire estate. In cases where both a spouse and descendants survived, the spouse received a child’s share or a value not exceeding a fixed amount (currently R250,000.00), whichever was greater, and the descendants inherited the remainder of the estate.


For parents and siblings, if there was no spouse or descendants, the estate went to the deceased's parents or their descendants. If no parents or descendants of parents were alive, the estate went to the closest blood relatives. Unfortunately, the Act did not previously recognise permanent life partners, leaving individuals in such relationships without a legal claim to their partner’s estate unless specified in a will. This often resulted in unfair outcomes, especially for long-term partners who had provided mutual support and were financially dependent on their partners.


A landmark case that changed this was Jane Bwanya v Master of the High Court, Cape Town and Others. According to the facts of the case as cited, Jane Bwanya and her deceased partner were in a committed relationship and were planning to get married. Unfortunately, her partner passed away intestate before their lobola negotiations could begin. Despite their relationship's permanence and the financial support provided by the deceased, Bwanya's claims to inheritance and maintenance were initially rejected by the executor, based on existing legal definitions that only recognised benefits for married couples.


Bwanya challenged the constitutionality of the relevant sections of the Intestate Succession Act, 1987, and the Maintenance of Surviving Spouses Act, 1990. The Western Cape High Court found section 1(1) of the Intestate Succession Act unconstitutional because it excluded opposite-sex permanent life partners. However, it upheld the constitutionality of the definition of “survivor” in the Maintenance of Surviving Spouses Act. The Constitutional Court later confirmed the High Court’s declaration of invalidity regarding section 1(1) of the Intestate Succession Act and extended this to include the definition of “survivor” under the Maintenance of Surviving Spouses Act.


The Court found that excluding permanent life partners from these benefits constituted unfair discrimination based on gender, sexual orientation, and marital status, which violated their rights to dignity and equality. The Court recognised that permanent life partnerships should be considered legitimate family structures deserving of legal protection, aligning with broader constitutional values of equality and non-discrimination. It confirmed that section 1(1) of the Intestate Succession Act was unconstitutional because it unfairly discriminated against opposite-sex life partners. The definition of "spouse" now includes partners in permanent life partnerships who have undertaken reciprocal duties of support.


The Court also found the definition of “survivor” in the Maintenance of Surviving Spouses Act unconstitutional as it excluded permanent life partners. The Court ordered that this definition be expanded to include surviving partners of permanent life partnerships where reciprocal duties of support were present, ensuring they receive equitable shares in the deceased partner’s estate.


With the Judicial Matters Amendment Act, 2023, effective from 3 April 2024, significant changes have been made to the Intestate Succession Act. Section 1(1A) was added, stating:


The word ‘spouse’, wherever it appears in this section, includes a partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support.


This amendment legally recognises permanent life partners, granting them the same rights to inherit from their partner's intestate estate as a surviving spouse. This legal recognition addresses historical injustices and ensures that the surviving partner can inherit the entire estate if there are no descendants, or receive a child’s share or R250,000 (whichever is greater) if there are descendants, with the remaining estate going to the descendants.


So, what does this mean for people living in a permanent life partnership? While the amendments are a significant step forward, there are still some shortfalls. For instance, not all permanent life partners may intend for their partner to inherit their estate. If this is not clearly documented by way of a Will, it could lead to unintended consequences. Moreover, the concept of "reciprocal duties of support" might be open to interpretation, potentially leading to disputes, and will most likely be subject to further litigation and case law in future. Therefore, even with these amendments, it is crucial for partners to have a will to ensure their estate is distributed according to their wishes. A will provides certainty and can help avoid potential legal conflicts, ensuring that the intentions of the deceased are respected.


For permanent life partners, these legal changes emphasise the importance of having a cohabitation agreement to outline the responsibilities of each partner, or particularly if one partner is financially dependent on the other. Despite the new inheritance rights for permanent life partners, it may be important for life partners to have a cohabitation agreement. This agreement would typically outline the terms of financial support, property ownership, and other mutual obligations during the partnership and upon its dissolution. Estate planning is also essential. All individuals, whether in a life partnership or marriage, should have a well-drafted will. This ensures that their estate is distributed according to their wishes and can help avoid potential legal disputes.


The term "reciprocal duties of support" means that both partners in a permanent life partnership have committed to support each other financially and emotionally, much like in a marriage. This includes sharing living expenses, supporting each other in times of need, and generally acting as each other’s primary source of support. It is essential for partners to clearly document this mutual support, possibly through a cohabitation agreement, to ensure that their relationship is legally recognised and protected.


The Constitutional Court’s decision in Bwanya v Master of the High Court was a landmark ruling that advances the rights of permanent life partners in South Africa. It affirms their entitlement to inheritance and maintenance, promoting equality and non-discrimination. For those in such partnerships, this judgment has resulted in changes to the legislation which now not only offers significant legal protection for life partners, but it also highlights the continuing importance of proper legal and estate planning.


For legal advice on estate planning, preparing a will, or drafting a cohabitation agreement, please contact Spence Attorneys at info@spencelaw.co.za


Professional & Reliable. We are here for you.


Disclaimer: This article is for information purposes only and does not constitute legal advice. For legal advice, please consult with an attorney.

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