Losing a partner is painful enough. Being told by the deceased’s family that you have no rights because you were never married can be devastating, especially after a long and committed relationship. Until recently, the law appeared to agree with that view. That position has now changed.
In Bwanya v Master of the High Court and Others 2022 (3) SA 250 (CC), the Constitutional Court declared aspects of the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 unconstitutional insofar as they excluded surviving permanent life partners from the protection those statutes extended to surviving spouses. The court read words into both Acts, and Parliament has since amended the definition of “spouse” in each of them through the Judicial Matters Amendment Act 15 of 2023.
This article explains what the rights of permanent life partners in South Africa now look like, who qualifies, and what a surviving unmarried partner facing an unmarried partner deceased estate should do to assert a claim before the liquidation and distribution account is confirmed.
What Bwanya v Master Actually Changed
Before Bwanya v Master, a surviving unmarried partner had no statutory claim as a “spouse” against the deceased estate of the person they had lived with, no matter how long the relationship. Two statutes closed the door. The Intestate Succession Act determined who inherited when a person died without a will, and it recognised only spouses. The Maintenance of Surviving Spouses Act allowed a surviving spouse to claim reasonable maintenance from the estate, and it too was limited to spouses.
The Constitutional Court held that this exclusion unfairly discriminated against the surviving partners of permanent life partnerships in which the partners had undertaken reciprocal duties of support. The court read the words needed to include such partners into section 1 of each Act. In practical terms, an Intestate Succession Act life partner who can prove the required partnership now inherits as if they were a spouse for the purposes of intestate succession, and can claim reasonable maintenance under the Maintenance of Surviving Spouses Act on the same footing as a surviving spouse.
The Judicial Matters Amendment Act 15 of 2023 gave legislative effect to the read-in by amending the statutory definition of “spouse” in both Acts. The core position readers must understand is straightforward. A surviving permanent life partner who can prove a relationship akin to marriage with reciprocal duties of support is now within the protection of both statutes. That does not mean the claim is automatic, and it does not mean cohabitation alone is enough. It means the door is open where the facts support it.
Who Qualifies as a Permanent Life Partner After Bwanya
The court in Bwanya was careful about scope. The protection extends to a partner in a permanent life partnership in which the parties have undertaken reciprocal duties of support. Each element carries weight.
The relationship must be permanent, not casual or transitional. It must be a life partnership, meaning the parties conducted their lives together in a manner comparable to spouses in a marriage. And critically, both partners must have undertaken reciprocal duties of support, whether financial, practical, or a combination of both. A relationship in which the parties lived together but kept their lives entirely separate, with no mutual support, may fall short.
The earlier decision in Volks v Robinson 2005 (5) BCLR 446 (CC) is not gone. It survives to the extent that a claimant cannot establish a permanent life partnership with reciprocal duties of support. Where those facts are absent, the older exclusionary position may still apply. For same-sex partners, Gory v Kolver NO 2007 (4) SA 97 (CC) had already opened the door for intestate succession, and Bwanya now completes the picture across both statutes.
Whether a particular relationship meets the threshold is fact-sensitive. The merits determine the classification. A blended-family situation, where the deceased was previously married and has biological children who dispute the relationship, is the most common contested scenario we see in practice. In those cases, the rights of permanent life partners often turn on the quality of the evidence more than on the length of the relationship.
Two Remedies That Work Together: Intestate Inheritance and Surviving-Spouse Maintenance
A surviving life partner may have two distinct claims against the estate, and they are not alternatives. They operate together.
The first is intestate inheritance under the Intestate Succession Act. Where the deceased died without a valid will covering all their property, the Intestate Succession Act life partner may inherit as a spouse would, subject to the rules that apply when there are also descendants. This claim reaches only assets that fall to be distributed intestately. If the deceased left a valid will covering the estate, no intestate share arises. If the will covers only part of the estate, an intestate share may arise on the balance.
The second is a maintenance claim under the Maintenance of Surviving Spouses Act. This claim is available whether or not the deceased left a will. It is a claim for reasonable maintenance from the estate, measured against the survivor’s own means, earning capacity, and reasonable needs, and against what the estate can afford. It is not a windfall, and it is not a share of the estate. It is a claim for maintenance in the true sense, and the executor must assess it on the evidence.
These two remedies working together are the practical shape of life partner inheritance South Africa now allows. A claimant should not assume that inheriting intestately excludes maintenance, or that a will disposing of the estate excludes a maintenance claim. Both should be assessed on the facts.
Rights of Permanent Life Partners: Enforcing the Claim Against the Estate
Substantive rights are only as useful as the process that enforces them. Enforcement against an unmarried partner deceased estate turns on lodging a formal, written, well-founded claim with the executor at the correct point in the estate administration.
When the executor advertises the estate under section 29 of the Administration of Estates Act 66 of 1965, creditors and other claimants are called on to lodge their claims. A life partner asserting rights under the Intestate Succession Act or the Maintenance of Surviving Spouses Act should lodge a formal claim in writing at that stage, supported by evidence of the partnership, the reciprocal duty of support, and, where a maintenance claim is made, the maintenance need and the limits of the survivor’s own means.
The executor is required to assess the claim on the evidence presented. The executor’s role is to adjudicate, not to build the case. If the evidence is thin, the executor must call for more or reject the claim. If the claim is valid on its face and on the supporting material, it must be accepted.
The next moment of enforcement is the liquidation and distribution account under section 35 of the Administration of Estates Act. If the executor accepts the claim, it will be reflected in the account. If the executor rejects the claim, the account will exclude it, and the survivor then has to use the objection process against the L&D account to dispute the executor’s position. Timing matters. The statutory timelines for creditors and objections are specific, and delay creates its own problems. Once the timelines have lapsed and a survivor tries to raise the claim on an urgent basis, a court will ask why no action was taken at the appropriate time.
Urgency does arise, particularly where distribution to other heirs is imminent, immovable property is about to transfer, or estate assets are being dissipated. In those cases, interdictory relief to preserve the position may be necessary, but the far better course is to lodge the claim in writing at the correct point and to avoid manufactured urgency.
Vermeulen Attorneys advises surviving life partners on the rights of permanent life partners against a deceased estate and on the timing of the section 29 and section 35 process. To discuss your position, contact our deceased-estates litigation team.
Evidence That Proves a Permanent Life Partnership and Reciprocal Duty of Support
The evidence in a Bwanya claim does two things. It establishes the partnership, and it addresses the maintenance need if a Maintenance of Surviving Spouses Act claim is included.
On the partnership, useful material typically includes:
- the length and continuity of cohabitation;
- joint ownership or joint use of a home;
- joint bank accounts or shared expenses;
- evidence of financial and practical support flowing both ways;
- correspondence and communications treating the relationship as a life partnership;
- third-party recognition by family, friends, employers and institutions;
- children of the relationship, where applicable;
- evidence that the partnership subsisted at the date of death.
On the maintenance side, the claimant must show the reasonable need, the extent to which their own means and earning capacity cannot meet that need, and the extent to which the estate can afford to meet it, taking into account any benefits already received from the estate.
Preserve documents early. Bank statements, communications, photographs, joint agreements, correspondence with medical aids or retirement funds, and any written acknowledgements of the relationship are far easier to gather while the relationship is still in living memory than after months of estate administration have passed. Where a claim is likely to be contested, the quality of the founding evidence often determines the outcome.
If your partner has died and you were not married, Vermeulen Attorneys assists surviving life partners with gathering evidence and lodging a claim under the Intestate Succession Act and the Maintenance of Surviving Spouses Act. Arrange a consultation before the executor advertises the estate.
Common Misconceptions About Cohabitation Inheritance in South Africa
Several beliefs continue to cause harm in this area. It is worth naming them.
There is no “common law marriage” in South African law. Cohabitation, however long, does not create a marriage. What Bwanya recognised is a distinct legal category: a permanent life partnership with reciprocal duties of support. The rights of permanent life partners are grounded in that category, not in some presumed automatic upgrade of a long relationship into a marriage. Cohabitation inheritance South Africa now allows is available only where the partnership and reciprocal duty of support are proved.
Bwanya does not apply automatically. A claimant must prove the partnership and the reciprocal duty of support. Simply having lived together, even for many years, is not sufficient on its own.
A Bwanya claim is not a will challenge. Contesting a will attacks the validity of the will itself, on grounds such as lack of capacity, undue influence, or non-compliance with formalities. A Bwanya claim asserts statutory recognition as an intestate heir or as a survivor for maintenance purposes. Pursuing the wrong remedy wastes time and, in a heavily time-bound estate process, can be costly.
A Bwanya claim does not defeat legitimate creditors, and it does not apply to short-term or non-supportive relationships. It also does not reach assets held in trust rather than in the personal estate. Where the deceased’s wealth sits in a family trust, different remedies may be relevant. Vermeulen Attorneys assists with trusts litigation where trust-held assets are in issue.
When to Get Attorneys Involved
The right time to obtain legal advice is early, ideally as soon as the death occurs or as soon as it becomes clear that the deceased’s family is not going to recognise the relationship. Waiting until the L&D account has been advertised, or worse, until it has been confirmed and assets are being transferred, narrows the options considerably.
A formal claim under the Intestate Succession Act, the Maintenance of Surviving Spouses Act, or both, is a legal document that will serve as the foundation for any further proceedings if the executor rejects it. It needs to be well founded, properly documented, and lodged at the correct point in the process. Getting this right the first time protects the substantive position and avoids the harder ground of urgent litigation against a distribution that has already begun.
Cathleen Breedt leads the deceased-estates litigation practice at Vermeulen Attorneys and advises surviving life partners on standing under Bwanya, on the evidence needed to prove the partnership and reciprocal duty of support, and on engagement with the executor and the Master of the High Court. To assess your position, book a consultation with our team.
Frequently Asked Questions
What are the rights of permanent life partners when a partner dies?
After Bwanya v Master of the High Court, a surviving permanent life partner who can prove a partnership akin to marriage with reciprocal duties of support may inherit intestately under the Intestate Succession Act and may claim reasonable maintenance under the Maintenance of Surviving Spouses Act. The Judicial Matters Amendment Act 15 of 2023 has amended the definition of “spouse” in both statutes to reflect this position. The claim is not automatic, and the partnership must be proved.
My partner and I lived together for 15 years without marrying. Do I inherit anything?
Possibly, but not automatically. What cohabitation inheritance South Africa now allows after Bwanya depends on whether you can prove a permanent life partnership with reciprocal duties of support at the date of death, and on whether the deceased died intestate or with a will. If there is no will, or the will does not cover the whole estate, an intestate share may arise. A maintenance claim may also be available whether or not there is a will. Life partner inheritance South Africa now runs through both statutes, and an attorney will need to assess the specific facts.
Does Bwanya apply automatically, or do I have to prove the partnership?
You have to prove it. Bwanya opened the statutory protection to permanent life partnerships with reciprocal duties of support, but the claimant carries the evidentiary burden. Cohabitation alone, without reciprocal support, is unlikely to meet the threshold.
What if the deceased’s children are refusing to recognise our relationship?
That is common, particularly in blended-family situations where the deceased was previously married. Their refusal does not defeat the claim. The claim is against the estate through the executor, and the executor must assess it on the evidence. If the executor rejects the claim, the objection process against the liquidation and distribution account is the next step.
How is a Bwanya claim different from contesting a will?
A will challenge attacks the validity of the will itself. A Bwanya claim does not challenge the will. It asserts that the surviving partner qualifies as a “spouse” or “survivor” under the Intestate Succession Act and the Maintenance of Surviving Spouses Act, and that the estate must reflect that. The two remedies are different, and pursuing the wrong one is a serious tactical error.
What if the deceased’s assets are all held in a trust?
Where the estate itself is thin because the assets sit in a family trust, a Bwanya claim will reach only the personal estate. Trust-held assets require different remedies, which may include an attack on the trust structure itself. That analysis is fact-sensitive and requires separate advice.
