WeeklySA_AdminINTESTATE: Notably, an unmarried partner has no automatic right to inherit, regardless of the length or nature of the relationship…
By Anastacia Willemse
In South Africa, the institution of marriage carries a range of legal protections for spouses, particularly regarding property rights, inheritance, and financial security upon death.
Unmarried couples, however, do not enjoy these automatic protections. This makes estate planning, and specifically the drafting of a valid will, essential for cohabiting partners who wish to protect each other.
Dying intestate, without a valid will can have severe consequences for unmarried partners. Under South African law, intestate succession is governed by the Intestate Succession Act 81 of 1987. This Act provides for the distribution of the estate to the deceased’s spouse, descendants, and, if none exist, other family members. Notably, an unmarried partner has no automatic right to inherit, regardless of the length or nature of the relationship.
For example, if a partner dies intestate, leaving only an unmarried cohabiting partner, the surviving partner may be left without any legal claim to the deceased’s estate. The estate would be distributed entirely among legal heirs, such as children, parents, or siblings. This can lead to financial insecurity, disputes, and potentially the loss of jointly held property. While unmarried partners may jointly own property or bank accounts, intestate succession law does not automatically recognise the surviving partner’s interest in the deceased’s estate unless they are legally registered as joint owners.
Co-ownership arrangements, such as joint tenancy or tenants in common, may protect some assets. Still, any property solely registered in the deceased partner’s name will pass according to the intestate succession law.
Drafting a valid will allows unmarried couples to circumvent the limitations of intestate succession. A properly drafted will can:
• Provide for the surviving partner: The deceased can specify that their partner inherits property, cash, or other assets.
• Protect jointly acquired assets: Even if property is registered solely in one partner’s name, a will can ensure it passes to the intended beneficiary.
• Avoid disputes among heirs: Clearly stating intentions reduces the risk of family disputes and litigation.
Include specific instructions: For instance, the deceased can designate beneficiaries for life insurance policies, pension funds, or digital assets.
To be legally valid in South Africa, a will must comply with the Wills Act 7 of 1953, which requires:
Written form: The will must be in writing
• Signature: The testator must sign the will at the end, or acknowledge their signature in the presence of two competent witnesses.
• Witnesses: Two witnesses must sign the will, attesting that the testator signed voluntarily and had the capacity to do so.
• Failure to meet these requirements may render a will invalid, leaving the estate subject to intestate succession.
Practical considerations for unmarried couples
• Regularly review the will: Changes in circumstances, such as children, property acquisitions, or financial changes, should be reflected in the will.
• Consider cohabitation agreements: While a will governs post-death succession, cohabitation agreements can provide clarity during the relationship, including financial arrangements and property ownership.
• Seek legal advice: Ensuring compliance with statutory requirements and addressing complex assets, such as business interests or foreign property, requires professional guidance.
For unmarried couples in South Africa, dying intestate can have serious, unintended consequences. Without a will, the surviving partner has no legal entitlement to inherit, leaving them financially vulnerable. Drafting a will is not just a practical step, it is a legal necessity that ensures the surviving partner’s rights are protected and that the deceased’s intentions are honoured.
By planning carefully and obtaining professional legal advice, unmarried couples can secure financial stability, protect jointly held assets, and prevent disputes, thereby providing peace of mind for both partners.
* The writer of the article, Anastacia Willemse, is a candidate attorney at SchoemanLaw Inc
