Domestic partnerships and the Intestate Succession Act

A domestic partnership or cohabitation, as it is also known, is where two individuals live together but are not married. Today, this form of intimate partnership is becoming increasingly popular in South Africa. According to the 2011 Census, more than three million or 8,6% South Africans were involved in relationships of this nature.

A domestic partnership, irrespective of its duration, is however not deemed to be a ‘common law marriage’ and despite numerous recommendations and the publication of a draft Domestic Partnerships Bill 2008, South Africa has no dedicated domestic partnership legislation. Consequently, the laws that protect individuals in a marital relationship do not protect individuals who are in a domestic partnership.

Therefore, if a partner in a domestic partnership dies without leaving a valid will, the partner has no legal right to inherit under provisions of the Intestate Succession Act 81 of 1987.

The Intestate Succession Act, in simple terms, provides a set of rules on how the deceased’s estate will be divided between spouses, descendants and family members. It only applies when there is no valid will. In most cases, the largest portion of the estate will go to a spouse and then equal amounts are distributed to the descendants, depending on the value of the estate. However, where there are no spouses or descendants, the estate will go on to be divided between living family members according to the stipulations contained in the Act.

In recent times, the rights of intestate succession in terms of the Intestate Succession Act have also been extended to surviving partners of couples married according to the Islamic Law as well as unmarried same-sex domestic partners. The heterosexual domestic partnership is currently the only recognised form of intimate relationship that remains excluded from this benefit.

Consequently, it is of utmost importance for partners in a heterosexual domestic partnership to draft a valid last will and testament if they would like their partner to inherit from their estate.