Unmarried couples: who gets what on the death of a partner?

You’ve lived with your partner for years, building a home, plate by plate, couch by couch. But without a marriage certificate or a traditional celebration, South African law does not afford you the same legal protections that married couples enjoy. So, what happens if your partner passes away?

Family disputes over assets are common after a death, and for unmarried couples, the stakes can be even higher, says Shaka Zwane, head of insurance and fiduciary at Standard Bank.

“Living together before marriage has become common in South Africa for several reasons,” Zwane explains. “Sometimes it’s due to economic circumstances and pooling resources might make financial sense. Other couples believe it’s wise to get to know each other’s habits before committing to marriage.”

According to the 2022 Census Survey Report, around eight in every 100 couples live together before marriage. Some buy property together, some find a new neutral residence, while in many cases, one partner moves into the other’s home. Regardless of the arrangement, Zwane warns that things can become complicated if one partner dies, especially if there is no valid will in place.

“Unlike married couples, cohabiting partners are not automatically protected by laws such as the Maintenance of Surviving Spouses Act,” he says. “Many people assume that the longer they’ve lived together, the more likely the law will recognise them as a ‘surviving spouse.’ But that’s a difficult and uncertain legal route.”

Know your rights

There has been progress in recognising the rights of couples living together in a permanent relationship. In the landmark 2021 case Bwanya v Master of the High Court, the Constitutional Court ruled that partners in permanent life partnerships where there is a reciprocal duty of support, can inherit and claim maintenance from a deceased partner’s estate. This ruling led to legislative changes through the Judicial Matters Amendment Act of 2023. It now allows both same-sex and opposite-sex life partners to claim inheritance and maintenance, provided they can prove that the reciprocal duty of support existed in the relationship.

Still, Zwane cautions that these rights are not automatic. “The process still requires legal action to prove the reciprocal duty of support. The best decision couples can make is to document their wishes in a Last Will and Testament and to sign a cohabitation agreement.”

A cohabitation agreement should clearly outline each partner’s responsibilities and rights to shared assets. It should also align with the provisions in the will. “Without these documents, conflicts can escalate, leading to financial strain and emotional distress,” Zwane warns.

In summary, while recent legal developments have improved protections for cohabiting partners, the safest route remains proactive legal planning. Draft a will. Sign a cohabitation agreement. And ensure your intentions are clear, before it’s too late.

PERSONAL FINANCE