As we celebrate the month of love, about 3.5 million South African couples who are living together but are not married should be aware that when it comes to legal affairs, not all is fair in love and wills.
This was underscored in a recent dispute involving a long term girlfriend who wanted to claim from her deceased boyfriend’s estate – a claim that has been denied by the High Court.
Moremadi Mabule, head of wills at Sanlam Trust discusses steps that couples should consider to ensure their significant other can benefit from their estate, even if they are not married.
While unmarried couples, same-sex or heterosexual, who live together are classified as a “common-law spouse” in many countries, Mabule says that in South Africa, this popular term is not legally recognised.
“While life partners may have the characteristics of a marriage, it is not a marriage and not formalised or registered in terms of the Civil Union Act or the Recognition of Customary Marriages act.
“Unmarried couples who live together often refer to themselves as life partners but need to be aware of the misconception that if you live together for a period of time, the law will recognise your union as a marriage,” Mabule explained.
If you are in a stable monogamous relationship, there are a few things to consider when drafting your will.
If as a couple, you are accumulating assets together or individually, make sure that you have your intentions documented in your will in terms of how and who you want your assets distributed to.
Have some form of agreement, for example, a contract of domestic partnership to regulate your financial affairs.
Record your wishes and intentions regarding your assets as far as your life partner is concerned. In this way, you are protecting each other from family members who may have a different view as to how your assets are distributed.
However, it should be noted that the Law of Intestate Succession does not apply to life partners, but automatically kicks in when someone passes away without leaving a valid will. Mabule explains that to determine who will inherit the deceased estate, the intestate succession formula works as follows:
- If a person dies leaving only a married spouse behind, the spouse will be the sole heir.
- If there is no married spouse, but children, then those children will inherit equal portions.
- If there is a married spouse and children, both will get a share to the deceased estate.
- 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 formula, 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,” she noted.
“I would strongly recommend that spouses in life-partner relationships speak to their financial advisor who will guide them in protecting each other’s assets.”
Naturally, it is essential that life partners execute a last will and testament as well should they intend to leave assets to their unmarried partner.