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Cohabitation and Death

Cohabitation - which is often referred to as a common law marriage - can be described as living in a domestic partnership that is not recognised as a legal relationship by South African law. 

Since the law does not recognise cohabitation relationships as a legal marriage, the rights and duties that marriage confers do not apply, irrespective of the duration of the relationship.

Common Law Marriage? 

Contrary to popular belief, living with your partner for a certain amount of years does not mean that you will obtain certain benefits under a common law marriage.

Intestate Succession

When a cohabitant dies without leaving a last will and testament, their partner has no rights to inherit under the Interstate Succession Act. Also, a cohabitant cannot rely on the provisions of the Maintenance of Surviving Spouses Act that secures maintenance on the death of their partner. 

There is no right of intestate succession - when someone dies without a will - between cohabitation partners. Without a will, a partner is not regarded as an heir or dependent.

If the surviving partner is not named in the will, or if there is no will, he or she will have to prove their specific contribution to the joint estate. This can often be extremely difficult. 

Litigation is usually lengthy, costly and unwelcome in a time of emotional trauma. This can be exacerbated in the event that the deceased had not divorced a previous spouse, as the law provides the first spouse with leverage to proceed and claim the entire estate.

Van Deventer and Van Deventer Incorporated

To eliminate the stress that your partner will have after your death, consider leaving your property to your life partner through your last will and testament or a trust.

A trust allows you to provide a home and other assets for your partner, for the remainder of his or her life, and then have those assets reverted to your family after both of you are deceased.

You may also want to name your partner as the beneficiary of a life insurance policy.

To ensure that your life partner is taken care of when you are no longer around, contact our attorneys at Van Deventer and  Van Deventer Incorporated to assist you with your estate planning, as well as endow your partner with many of the rights and protections that married couples enjoy as a matter of law.

Contact the legal experts.