Living together won’t guarantee your rights

Only people legally recognised as spouses can claim inheritance and maintenance if their partner dies without a will.

Although same-sex partners and spouses from customary marriages are now recognised by the Intestate Succession Act, heterosexual couples who cohabit are not recognised by the Act as spouses.

Although roughly 3.5 million South Africans are cohabiting in domestic partnerships, only people who are legally recognised as spouses have the right to claim inheritance and maintenance if their partner dies without a will, says Charlene May of the Legal Resources Centre.

A recent Gauteng

High Court ruling has highlighted the matter after a woman who lived with her partner for 13 years lost all rights to his estate in favour of the woman he had married in a customary marriage in 1981.

Moremadi Mabule, head of wills at Sanlam Trust, says many

South Africans believe that if you live with a life partner on a permanent basis, you will be recognised as a “common-law” spouse. But “there is no such thing as a common-law spouse under South African law. This is a misconception,” she says.

If your spouse dies without a valid will, the

Law of Intestate Succession kicks in and works as follows:

z If a person dies leaving only a married spouse behind, the spouse will be the sole heir.

z If there is no married spouse but children, then those children will inherit equal portions.

z If there is a married spouse and children, both will get a share in the deceased estate.

z If there are only parents, then the parents will inherit, and if there are only siblings then they will inherit the deceased estate.

“Based on this law, if you are not married but in a stable monogamous relationship and your partner passes away without documenting what he/she wishes to leave you in terms of assets, you will not be able to inherit from their estate,” says Mabule. She says she strongly recommends that you speak to a financial adviser to ensure that your assets are protected and that you draw up a cohabitation agreement.

Kristy Giva Knill, head of the family law department at McLoughlin Clark Attorneys, says she often draws up cohabitation agreements for couples who want to move in together. Nothing stops you from signing such an agreement if you are already living together. This agreement outlines the assets you each entered the relationship with, your financial contributions to your household and how your assets will be split if your relationship ends or one of you dies.

Knill says although the Domestic Partnership Bill was gazetted in 2008, it is not yet law. But there is hope that the rights of life partners to inherit will soon be recognised in South Africa.

The Western Cape High Court made a groundbreaking judgment in September last year that is getting the attention of the Constitutional Court. The case of Jane Bwanya v the Executor of Estate Late Ruch and Others challenged the constitutionality of excluding heterosexual couples from inheriting from each other in terms of the Intestate Succession Act.

Before the court could deal with constitutional validity, it had to establish if the couple were permanent life partners or not. “This is where it gets tricky because you may have family members and other potential beneficiaries disputing the permanency of the relationship,” Mabule says. In the Bwanya case, “the court was satisfied that the relationship was indeed permanent. The court further decided that the Intestate Succession Act was unconstitutional by excluding spouses in heterosexual unions. However, this matter still needs to be confirmed by the Constitutional Court,” she says.

She urges couples to enter into a cohabitation agreement to protect their assets and execute a last will and testament if they intend to leave assets to their unmarried partner.

Alex Simeonides, chief executive of Capital Legacy, says his company administers 80 to 100 new estates each month. “It is heart-wrenching to see how a lack of planning often leaves families destitute. I’m referring to planning all the way – from putting your wishes into a valid will to planning for whether your life insurance is going to the correct beneficiaries. People often think estate planning is overly complex, but it doesn’t have to be,” he says.

Simeonides outlined these tips for drafting your will:

z It needs to be signed with “wet” ink, which means printing it out and signing the hard copy with a pen.

z It must be witnessed by two independent witnesses who are not mentioned in your will.

z The content shouldn’t be contradictory. Contradictory conditions could create confusion and this may invalidate a part of the document or the will in its entirety.

z You cannot give away what is not yours. If you are married, your marital regime dictates what is legally yours to give away.

z All your debts must be paid before your beneficiaries can inherit.

z You cannot rule from the grave. You may not place conditions on inheritance, such as “my daughter needs to marry a doctor before she may inherit”. A basic will can be drafted by your attorney. Banks often offer a will-drafting service “free of charge”, but this is conditional on you appointing the bank as the executor of your will. The bank will charge executor fees – 3.5% of the gross value of your assets and the total charge is 3.99% once you have accounted for VAT.

Attorneys who participate in National Wills Week offer a free will-drafting service in that week, which usually falls in October. Details are on the Law Society of South Africa’s website at www.lssa.org.za.

Many South Africans believe if you live with a life partner on a permanent basis, you will be recognised as a common-law spouse. But … this is a misconception