Estate Planning for Unmarried Couples: Securing Your Partner’s Future

In South Africa, many couples choose to live together without getting married, either in life partnerships or long-term cohabitation arrangements. While these relationships can be as committed as marriage, the law does not automatically provide the same inheritance rights to unmarried partners. This can leave a surviving partner vulnerable if proper estate planning is not in place.

This article explores the importance of estate planning for unmarried couples, the legal gaps they face, and the tools available to secure a partner’s financial future.

The Legal Position of Unmarried Couples

Under South African law, there is no automatic right of inheritance for unmarried partners, regardless of the length or nature of the relationship. Unlike spouses, who are recognised under the Intestate Succession Act 81 of 1987, life partners do not automatically inherit when their partner dies without a will. This means that if one partner passes away intestate (without a will), the surviving partner may be excluded from inheriting any portion of the estate.

Court decisions such as Gory v Kolver NO and Others [2006] ZACC 20 extended intestate inheritance rights to same-sex partners prior to the legalisation of same-sex marriage. However, heterosexual life partners still do not enjoy the same protection, underscoring the need for proactive estate planning.

Key Risks for Unmarried Couples Without an Estate Plan

• Exclusion from Inheritance: The surviving partner may have no claim to the deceased’s assets.
• Family Disputes: Surviving family members of the deceased may inherit instead, leading to conflict and financial insecurity.
• Property Ownership Issues: If the property is registered in one partner’s name, the other partner may have no legal right to remain in the home.
• Financial Hardship: Without legal recognition, the surviving partner may lose access to bank accounts, investments, or other assets.

Estate Planning Tools for Unmarried Couples

1.   A Valid Will

Drafting a comprehensive will is the most effective way to ensure a surviving partner inherits. A will allows you to specify who should inherit your property, money, and personal belongings.

2.   Cohabitation Agreements

These contracts set out each partner’s financial rights and responsibilities, including property ownership and maintenance. While not a substitute for a will, they provide clarity and can reduce disputes.

3.   Trusts

Creating an inter vivos or testamentary trust can protect assets for the surviving partner, seeing to it that they benefit from income or use of property.

4.   Beneficiary Nominations

Certain assets, such as retirement annuities, pension funds, and life insurance, allow you to nominate beneficiaries directly. This ensures the benefits go to your partner without being delayed in the estate process.

5.   Joint Ownership Structures

Registering property in both partners’ names can create security of tenure. Alternatively, a usufruct can be granted to the surviving partner, allowing them to use the property for life.

Tax and Estate Duty Considerations

Unlike married couples, unmarried partners do not automatically qualify for the spousal exemption from estate duty. This means that assets left to a surviving partner could attract estate duty. Careful structuring of the estate, such as using trusts and beneficiary nominations, can help to mitigate this burden.

Practical Steps to Secure Your Partner’s Future

• Draft and regularly update your will to reflect your wishes.
• Review beneficiary nominations on retirement funds and insurance policies.
• Consider a cohabitation agreement to formalise financial arrangements.
• Explore the use of trusts to provide long-term financial protection.
• Seek professional legal advice to structure your estate plan in line with your circumstances.

Conclusion

For unmarried couples in South Africa, estate planning is not optional – it is essential. Without a will or other legal mechanisms in place, a surviving partner could face exclusion from inheritance, financial hardship, and loss of security. By proactively planning through wills, trusts, cohabitation agreements, and beneficiary designations, couples can make sure that their commitment to each other is legally recognised and protected.

At AED Attorneys, we assist couples in creating robust estate plans that provide peace of mind and long-term security. For expert assistance that is tailored to your unique relationship, contact us today.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article which may result in any harm or liability flowing from the use of or the inability to use the information provided.