A Spouse for the purposes of Intestate Succession is a matter of definition


I have posted before about the need for people who are relatively young or believe they have too little in the way of assets to make a Will. In some countries like South Africa it is estimated that at least half of the estates reported at the Master’s Office of the High Court each year are intestate.

Some of you might think “So what I’ll be dead any way ” but as a way of planning for you and your loved ones futures it should be a similar decision to taking an insurance policy on your car, or if you are self employed making sure that you have sufficient income protection and life insurance so that your loved ones are cared for if you couldn’t work due to accident, illness or injury.

As I have posted before  a Will is a planning document and should be updated regularly  to take into account current circumstances, but with an eye on circumstances you will face in the future.

A husband may die leaving the majority of their estate to their wife who may die shortly thereafter; meaning that her will doesn’t reflect the position of these changed financial circumstances. If she dies without a Will the estate is divided according to the formula set out inIntestacy legislation in the place where she dies.

In different jurisdictions the type of relationship that you have will determine whether your partner will be considered to be your “Spouse” for intestacy purposes. In South Africa for example it is not defined in the Act, therefore it is up to the Courts to determine.

Post Apartheid legislative changes have broadened those who are recognised as being in a spousal relationship, including traditional marriages under black customary law, monogamous Muslim and Hindu marriages and polygamous Muslim marriages. The Constitutional court has also extended the definition for the purposes of intestate succession to same-sex partners.

However men and women who live together without getting married do not automatically qualify as spouses for the purposes of intestate succession.

In South Africa the Marriage Act regards marriage as a union between one man and one woman, same sex couples were not covered by the Act, therefore were not legally regarded as spouses. In 2006 the Civil Union Act came into effect, allowing those who enter into a civil union (regardless of their sexual orientation) the same rights as a married couple in terms of the Marriage Act including being regarded legally as each others spouse.

Prior to the Civil Union Act being passed the Constitutional Court held in Minister of Home Affairs v Fourie that a same sex couple who lived together can inherit from each other when one of the parties dies without a will because it was not possible to enter into any type of union to formalise their relationship. The Constitutional Court ruling, based on the need to affirm the character of the society as one based on tolerance and mutual respect, stands.

Therefore, a man and woman living together who are not married and have not entered into a civil union are not protected by this ruling and cannot inherit if one party passes away without a will.

Importantly this applies only to those who die without making a Will – if you make a Will you can leave your estate to any person that you wish because intestate succession will not apply.

If you don’t have a Will today is the day to start.


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