Generally, where life partners do not conclude a civil marriage, difficulty arises if one of the partners passes away without nominating the other partner as a beneficiary in his or her will. This is because of the wording in the legislation that deals with claims against deceased estates (specifically, in this instance, the Intestate Succession Act and Maintenance of Surviving Spouses Act): A married spouse is automatically acknowledged in certain claims, but not an unmarried life partner.

In a victory for the right to inherit from a life partner where the partners were not married, the Constitutional Court confirmed late in December 2021 that certain sections of the Intestate Succession Act and Maintenance of Surviving Spouses Act are unconstitutional. The ruling follows on the outcome in the Western Cape High Court, instituted on behalf of Ms. Bwanya, the fiancée and life partner of the late Mr. Ruch. Before his death, the two were planning to start a family and open a business together. Ms. Bwanya was however not mentioned in the will. It appeared that Mr. Ruch had never updated his will which left his entire estate to his mother who had passed away in 2013 already. At the time, Ms. Bwanya’s claims as ‘a surviving spouse’ against the estate were rejected by the executors because she was not married to Mr. Ruch and not a ‘spouse’.

The argument that the Intestate Succession Act should be amended to include, alongside the word ‘spouse’, also the words, ‘or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support and had been committed to marrying each other, was accepted by the Western Cape High Court and now confirmed by the Constitutional Court. In this way, such partners may inherit under the Intestate Succession Act and Maintenance of Surviving Spouses Act.

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