Proposed amendments to the Maintenance of Surviving Spouses Act have been published to include permanent life partnerships as a qualification for a surviving partner to submit a maintenance claim against their departed partner's estate. These amendments provide greater protection for unmarried couples in South Africa. This blog explores the background of the case law in response to disinheriting a life partner, the Bwanye case, and the proposed amendments to the Intestate Succession Act and the Maintenance of Surviving Spouses Act that were a direct result of the Bwanya case and aim to give effect to the Constitutional Court's ruling.

Introduction

"My girlfriend and I have been living together for the past 2 years. In my latest Will, my aged parents are the only heirs of my estate, which consists of a car, furniture, and R2000 cash in the bank. Can my girlfriend claim anything from my estate when I pass away?"

The court's ruling in Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51 (31 December 2021) (“Bwanya case”) was a significant victory for the rights of unmarried couples in South Africa, paving the way for legal recognition of their inheritance and maintenance rights. As a direct result of the Bwanya case, the Department of Justice and Constitutional Development published a draft bill, the Judicial Matters Amendment Bill, in the Government Gazette No. 48217 on 16 March 2023. Some of the proposed amendments pertain to the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA). The amendments aim to follow the instructions of the Constitutional Court in the Bwanya case and will directly impact couples who live together. While the Intestate Succession Act 81 of 1987 extends the meaning of "spouse," a broader definition is given in the MSSA for "spouse, surviving partner, and marriage." These amendments will soon take effect as the legal position in South Africa concerning couples living together, and there is no provision for public comment on this bill.

In this blog, we will explore what the Bwanya case was about and how the proposed amendments change the legal position of opposite-sex and same-sex couples who live together but are not legally married when one of the partners passes away.

case law in response to disinherit partner

South Africa is one of the few countries that maintain the doctrine of testamentary freedom. As a general rule in South Africa, individuals have the freedom to leave their possessions to whomever they choose in a valid Will. This stands in contrast to other countries that have forced heir rules, which mandate that either the spouse, children, or both inherit a certain portion of the deceased's estate, irrespective of the contents of their Will. However, in South Africa, the Maintenance of Surviving Spouses Act (MSSA) and the principles of common law allow surviving spouses and dependent children who have been disinherited to claim maintenance from the deceased estate. Previously, unmarried couples were not considered surviving spouses under the MSSA, and were thus ineligible to inherit or make claims on their partner's estate. This has led to a few court cases contesting the position.

In Gory v Kolver NO and Others [2006] ZACC 20; 2007 (3) BCLR 249 (CC) (23 November 2006), the Constitutional Court ruled that same-sex life partners must be recognised as spouses under the Intestate Succession Act and be entitled to inherit when their partner dies without a will. However, the court ruling only applied to same-sex partners because the court considered that heterosexual partners were able to formalise their relationship through marriage or other means.

In Volks NO v Robinson and Others [2005] ZACC 2, the MSSA was also challenged. Miss R lived with Mr AS for over 15 years, but they never married. After Mr AS passed away, he left Miss R R100,000, a car, and some household goods but the remainder of his estate, approximately R240,000, was left to his adult children who had emigrated to the US. Miss R, who had relied on Mr AS for financial support, asked the Constitutional Court to order the executor of the estate to consider her claim for future maintenance against the estate under the MSSA. However, the court determined that the Act could not be interpreted to include permanent life partners. The court maintained that the law may, in certain circumstances, grant privileges to married individuals that it does not grant to unmarried individuals. The court stated that heterosexual couples had the option to marry or not, and if they decided to marry, they agreed to the future responsibilities that come with marriage. The court also stated that cohabiting couples could only accept future obligations by mutual agreement.

The Bwanye case, which took place at the end of 2021, is a significant legal precedent in South Africa that addresses the inheritance and maintenance rights of unmarried couples. The case involved a couple, Miss B and Mr AR, who had lived together for over two years without being legally married. Unfortunately, Mr AR passed away before they could formalise their relationship. As a result, Miss B was unable to inherit the couple's shared home and Mr AR's assets, valued at about R3 million. To address this injustice, Miss B challenged the Intestate Succession Act and the MSSA, arguing that they discriminated against unmarried partners based on their marital status. In its decision, the Constitutional Court found that the existing laws did indeed discriminate against unmarried partners and were unconstitutional. As a result, the court ordered that the definition of "spouse" in the Intestate Succession Act and the MSSA should include partners in a permanent relationship, regardless of whether they are married or not. Additionally, the MSSA should be amended to allow unmarried partners to claim maintenance from the estate of a deceased partner, just as married spouses can. The court gave Parliament a period of 18 months to implement these changes.

Maintenance of Surviving Spouse Act 27 of 1990

Prior to the proposed amendment of section 1 of the Maintenance of Surviving Spouses Act (MSSA), the definition of "survivor" referred only to the surviving spouse in a marriage dissolved by death. However, clause 15 of the Judicial Matters Amendment Bill aims to comply with the judgment in Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51 by proposing amendments to the MSSA.

Specifically, the bill proposes extending the definition of "survivor" to include:

….the surviving partner of a permanent life partnership terminated by the death of one partner, in which the partners undertook reciprocal duties of support and where the surviving partner has not received an equitable share in the deceased partner’s estate…

The definition of "spouse" in the same section 1 is also proposed to be amended to include for purposes of the Act:

a person in a permanent life partnership in which the partners undertook reciprocal duties of support.

The amendment to Section 1 of the MSSA also includes a revision to the definition of “marriage,” which adds the phrase “permanent life partnership in which the partners undertook reciprocal duties of support”.

Therefore, under section 2(1) of the MSSA, a surviving partner in a permanent life partnership is eligible to submit a maintenance claim against the estate of their deceased partner. The section specifies that if a marriage is dissolved by death after the Act's commencement, the surviving partner has the right to claim reasonable maintenance needs from the deceased spouse's estate until their death or remarriage, if they are unable to provide for themselves through their own means and earnings.

Qualifications for Submitting a Maintenance Claim

Section 2(1) of the MSSA should be interpreted in light of the amended definitions of 'marriage,' 'spouse,' and 'survivor' in Section 1. These amendments establish three conditions that must be met for a surviving partner in a permanent life partnership to be eligible to submit a maintenance claim under Section 2(1):

• The surviving partner must have been in a permanent life partnership with the deceased partner, which is terminated by the latter's death.
• In this partnership, the partners must have undertaken reciprocal duties of support.
• There must be circumstances in which the surviving partner has not received an equitable share of the deceased partner's estate.

These conditions intend to clarify the eligibility criteria for surviving partners in permanent life partnerships seeking maintenance claims under the MSSA.
However, the legislature did not provide definitions for either "reciprocal duties of support" or "equitable share." The ordinary grammatical meaning of "equitable share" may refer to the "fair distribution of assets or property among parties." However, "equitable" does not necessarily mean "equal" by simply dividing things equally. Other definitions of "equitable" may include "fair to all parties as dictated by reason and conscience," "just," "free from favouritism or self-interest or bias or deception," and "impartial showing lack of favouritism."

The inclusion of the phrases "permanent life partnership" and "reciprocal duties of support" in the definitions allows surviving partners to claim maintenance from their deceased partner's estate under certain circumstances. However, the meaning of "equitable share" and "reciprocal duties of support" remains open to interpretation, and it will be up to the courts to provide guidance on these matters. Overall, the amendments are a step forward in recognising the rights of unmarried partners in South African law.

Format of the claim

If it is established that the surviving life partner falls within the definition of a spouse or survivor as a partner in a permanent life partnership, then there are requirements regarding the format of the claim and when it must be submitted for consideration by the executor.
In terms of Section 2(3)(a) of the MSSA, the proof of the claim and the executor's consideration of its acceptance or rejection fall within the provisions of the Administration of Estates Act 66 of 1965 (Estates Act). Thus, Sections 29 and 30-33 of the Estates Act will mainly apply. As confirmed in court cases, the claimant is required to submit an affidavit with supporting documentation. The MSSA and the Estates Act do not require the submission of an actuarially formulated maintenance claim. However, in practice and in several court cases, an actuary's report has assisted in formulating the claim by taking into account inflation and life expectancy calculations.

According to Section 2(1) of the MSSA, a surviving partner's claim under Section 3(a) is limited to the amount available for distribution to beneficiaries, meaning that the maintenance claim will be paid from the inheritances. The claimant must provide sufficient information with supporting documentation to prove that the claimed amount is in line with their reasonable maintenance needs. The executor will consider factors such as the claimant's existing and expected means and earning capacity, financial needs and obligations (in terms of Section 3(b)), standard of living during the marriage, and age at the time of the deceased spouse's death (in terms of Section 3(c)).
Preference order of claim.

In accordance with section 2(3)(b) of the Maintenance of Surviving Spouses Act (MSSA), after creditors have been paid, the maintenance claim will be paid, and whatever remains will go to the intestate or testate beneficiaries. If the maintenance claim of the surviving spouse and that of a dependent or minor child conflict with each other, the maintenance claims may, if necessary, be reduced proportionately according to section 2(3)(c) of the MSSA.

Type of settlement

In accordance with section 2(3)(d) of the Maintenance of Surviving Spouses (MSSA), the executor of the estate has the power to enter into an agreement with the claimant and the heirs and legatees who have an interest in the agreement, including the creation of a trust. Under the agreement, the executor may transfer assets of the deceased estate, or rights in the assets, to the claimant or the trust, or impose an obligation on an heir or legatee, to settle the claim or part thereof.

CONCLUSION

Court cases have expanded the meaning of a spouse, and in the recent constitutional case of Bwanye v The Master, the court found that legislation is unconstitutional to the extent that it excludes proven life partners in a permanent life partnership from the definition of "spouse" for inheritance or maintenance claims. The court ruling at the end of 2021 gave Parliament 18 months to amend the Intestate Succession Act and the Maintenance of Surviving Spouses Act, to ensure that a life partner in a permanent partnership can inherit from their partner's estate, even if the partner dies without leaving a Will or significantly excludes their partner.

Under the proposed amendments of the Judicial Amendment Act, if a person dies without leaving a Will, their unmarried partner would be entitled to inherit a portion of their estate, in the same way as a legal spouse. The amendments also provide for maintenance for surviving unmarried partners. Thus, if the deceased significantly excluded a surviving partner from inheriting, the surviving partner may be able to successfully submit a maintenance claim against the estate under section 2(1) of the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA) for the provision of their reasonable maintenance needs until death or remarriage. Specific qualifications must be met, including the existence of reciprocal duties of support and the lack of an equitable share in the deceased partner's estate. The term "equitable share" is not specifically defined but may be interpreted as a fair share that takes into account the circumstances of the partnership. Furthermore, the claimant must prove that they were in a permanent life relationship at the time of death (section 1) and that they are unable to provide for themselves through their own means and earnings (section 2(1)).

Therefore, if you disinherit your partner, they may submit a maintenance claim against your estate to cover their reasonable needs. This could reduce the inheritance of your other beneficiaries, such as in the case study of the parents as nominated heirs. To avoid such a claim, you can provide for your partner's maintenance needs in your Will or by nominating them as beneficiaries of your life insurance policy.

It is important to note that the amendments will soon be passed into law, and that they and the Bwanye case reflect the direction in which South African law is moving towards recognising the rights of unmarried partners. This means that unmarried partners who live together in South Africa should seek legal advice to ensure that their rights are protected in the event of one partner's death. Also, it is advisable to carefully consider all possible outcomes when drafting your Will to ensure that your loved ones are taken care of, and your assets are distributed according to your wishes. It is recommended that you consult a legal representative for assistance in this matter.