Business Brief

Societal norms are fast changing and cohabiting is no longer regarded as taboo. For many years, couples have lived together without entering a legally recognised marriage. “Vat en Sit” – a colloquial Afrikaans term for settling down together without the formalities that come with marriage – does not automatically afford couples the right to inherit in terms of the Law of Intestate Succession Act 81 of 1987 (ISA). The term “life partnership” is one of the terms used to signify this type of relationship. A heterosexual life partnership is between partners in an opposite-sex relationship.

In the judgment of Bwanya v Master of the High Court 2021 (1) SA 138 (WCC), the Court addressed the challenge on the constitutionality of both the Maintenance of Surviving Spouse Act 27 of 1990 (MSSA) and the Intestate Succession Act 81 of 1987 (ISA), insofar as they excluded the applicant from inheriting or receiving maintenance from her deceased life partner’s estate.

Section 1(1) of the (ISA) exclude life partners in a permanent opposite-sex life partnership from inheriting, while Section 2(1) of the (MSSA) excludes the maintenance benefit to permanent life partners who have undertaken reciprocal duties of support.

The Court was called on to determine whether the provisions of the ISA and MSSA were unconstitutional and invalid, and if so, what would be a just and equitable remedy.

The Constitutional Court found that both section 1 of the ISA and section 2 of the MSSA are unconstitutional and that it should be read to include a partner in a life partnership compliant with the test of reciprocal duties of care, maintenance, and support. The Court gave Parliament 18 months to amend the two pieces of legislation.

Significantly, this judgment now permits heterosexual permanent life partners who have undertaken reciprocal duties of support to claim inheritance and maintenance from the deceased partner’s estate.

Though the judgement allows for a claim for either maintenance or in terms of intestate succession, the claims are not automatic and it is still necessary to prove the existence of a universal partnership, an agreement, even if implied.

Estate planning includes the careful consideration of assets and liabilities, claims, taxes and obligations before the executor can distribute the estate. Proving a valid claim, is still costly and could delay the process of finalising the estate.

Careful estate planning to provide for administration costs, liabilities, taxes and other obligations and replacement of income is important to take care of loved ones. Members need to know, that to avoid intestate succession, they must have a valid Will drafted that expresses their wishes and intention of whom they want to benefit from their estate, even when couples choose to cohabitate.

It is, therefore, important to speak to a specialist to discuss their estate plan and seek advice to have a valid Will drafted.

Contact PPS Fiduciary on [email protected] for assistance regarding estate planning, the drafting of Wills and all other relevant matters.

By Advocate Anneke le Roux, PPS Fiduciary Services: Senior Fiduciary Specialist

Disclaimer: Kindly note that this does not constitute financial advice; the information provided is purely informational. In terms of the Financial Advisory and Intermediary Services Act an FSP should not provide advice to investors without an appropriate risk analysis and thorough examination of a client’s particular financial situation. The information, opinions and communication from the PPS Group or any of its subsidiaries, whether written, oral or implied are expressed in good faith and not intended as investment advice, neither do they constitute an offer or solicitation in any manner. Professional Provident Society Insurance Company Limited is a licensed insurer conducting life insurance business, a licensed controlling company and an authorised financial services provider.