Attorney advice: Can you benefit from your deceased partner’s estate?
Attorney Nthabiseng Ngoepe answers crucial questions about cohabiting relationships and what happens in the case of death.
Statistics show that cohabitation is on the rise around the world.
In South Africa, cohabitation has become more common over the past few years. The number of cohabitants increases by almost 100 per cent each year, states the divorce laws’ website.
With divorce on the rise, some people are afraid of committing themselves to an institution they are not sure will last.
Other people believe that marriage is just a piece of paper but does not prove commitment.
Some couples, on the other hand, feel that cohabiting offers them an opportunity to see if they can live together in marriage, so it is treated as a step before committing.
Whatever the reason might be for the increase in cohabitation, one of the important things to consider is what happens in the event of the death of a partner. This is especially important because most partners who are cohabiting share costs.
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Do cohabiting partners have the same protection from the law as married people do?
According to divorce laws’ website, men and women living together do not have the rights and duties married couples have.
“Cohabitation in SA law is not a common law marriage,” says Nthabiseng Ngoepe, an attorney at Kgatla Incorporated.
She says those who cohabit won't be able to receive the same benefits from a deceased partner's estate, regardless of how long they have been together.
“There is a great misconception that no matter how long you stay together you’ll get benefits. As I say it is a misconception, two parties cohabitating have no legal rights or obligations with regard to the estate of the other. This is the case even in death or separation,” says the attorney.
When a cohabitant dies, the partner is not liable to inherit his estate, unless the deceased included him/her in the will.
“Living together, even if it’s for 20 years, would not entitle such a partner to inherit from the estate of the other unless there is a will in place,” says the attorney.
In the case where a person dies without a will, the partner has no right to inherit under the Interstate Succession Act. The surviving partner will also not benefit from the Maintenance of Surviving Spouses Act. This act deals with claiming for maintenance in the case that their spouse dies.
“The Maintenance Act does not recognise a cohabitative partner and as such they can never sue for one’s personal maintenance,” says the attorney.
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Which legal agreement can people cohabiting enter into?
“The parties can have a cohabitation agreement that regulates their responsibilities towards each other as well as rights. Some courts can enforce such an agreement,” says attorney Nthabiseng.
A cohabitation agreement will state the couple’s legal obligations and protect their rights. It regulates essential aspects such as living expenses, property, debt, and maintenance.
Ngoepe says another way to ensure one can benefit from their deceased partner’s estate is to have a universal partnership.
“The only way to have such a claim on each other’s estates on death or separation would be if they can prove that they have a universal partnership. Again, a universal partnership is entirely distinct from a cohabitation agreement. Currently a significant majority of legislations in SA do not recognise cohabiting partners,” says Ngoepe.
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