CMV Group – Accountants & Legal Consulting

The current laws applicable when a person dies intestate (without a valid will), namely the Intestate Succession Act and Maintenance of Surviving Spouses Act, bestow benefits only on spouses, i.e. married couples. In other words, partners in permanent life partnerships are currently excluded from receiving inheritance or maintenance as they are not considered “spouses”.

This is about to change significantly. Following a ruling of the Western Cape High Court (Bwanya v Master of the High Court, Cape Town and Others) the Constitutional Court granted Parliament 18 months to amend the definition of a spouse in the Intestate Succession Act and the Maintenance of Surviving Spouses Act.

The amendment will ensure that a life partner in a permanent life partnership – in which the partners had undertaken reciprocal duties of support – will be included in the definition of a “spouse”. 

The amendments are as follows:

INTESTATE SUCCESSION ACT

(this act determines your beneficiaries when you pass away without a (valid) will)

Section 1(1) of the Intestate Succession Act is to be read as though the following words appear after the word “spouse”, wherever it appears in the section: “or partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support”.

MAINTENANCE OF SURVIVING SPOUSE’S ACT

  1. The definition of “survivor” in Section 1 of the Maintenance of Surviving Spouses Act is to be read as if it included the following words after the words “dissolved by death”: “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 partner’s estate”.
  2. Section 1 of the Act is to be read as though it included the following at the end of the existing definition:
    1. “Spouse” for the purposes of this Act shall include a person in a permanent life partnership in which the partners undertook reciprocal duties of support.
    1. “Marriage” for the purposes of this Act shall include a permanent life partnership in which the partners undertook reciprocal duties of support.

The amendments do not appear to take the length of a relationship into consideration, meaning whether you have just moved in together and share the household expenses, or whether you’ve been living together for a prolonged period of time, your relationship will be seen as a permanent life partnership and therefore you both qualify as “spouses”.

The amendment of the definition of a spouse will have a drastic effect on inheritance law, giving a surviving life partner in any relationship the right to inherit and claim maintenance after the death of a partner from such partner’s estate. 

After the amendment has taken effect and a person dies intestate (without a valid will) the life partner will be considered a spouse and will inherit in terms of the Intestate Succession Act. If there is a will but the will does not nominate the life partner as a beneficiary, the life partner will have a claim for maintenance against the estate in terms of the Maintenance of Surviving Spouses Act. The effect being your life partner could inherit a share equal to that of your children.

To prevent possible unintended consequences, it remains the best solution to have a valid will and to update it when your circumstances change (for instance when entering a life partnership or marriage, or in the event of a death of one of your beneficiaries, or a new birth in the family, or getting divorced).

Make sure that your will is in line with your wishes regarding the distribution of your assets after your death, keeping in mind that your life partner will be considered your spouse for all legal and practical purposes.

Contact Natasja Durrant of CMV Trust (Pty) Ltd at natasja@cmv.co.za to provide you with professional advice and draft your will for free (terms and conditions apply).

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