Category Life Insurance

“Vat en Sit” does not automatically afford you a claim against your partners estate, for now

19 September 2022 Advocate Anneke le Roux, PPS Fiduciary Services: Senior Fiduciary Specialist

Societal norms are fast changing and cohabiting is no longer regarded as a taboo. For many years, couples lived together without entering a legally recognised marriage. “Vat en Sit” – a colloquial Afrikaans term for settling down together without the formalities that come with marriage – does not automatically afford couples the right to inherit in terms of the Law of Intestate Succession Act 81 of 1987 (ISA).

The term “life partnership” is one of the terms used to signify this type of relationship. A heterosexual life partnership is between partners in an opposite-sex relationship.

In the judgment of Bwanya v Master of the High Court 2021 (1) SA 138 (WCC), the Court addressed the challenge on the constitutionality of both the Maintenance of Surviving Spouse Act 27 of 1990 (MSSA) and the Intestate Succession Act 81 of 1987 (ISA), insofar as they excluded the applicant from inheriting or receiving maintenance from her deceased life partner’s estate.

Section 1(1) of the (ISA) exclude life partners in a permanent opposite-sex life partnership from inheriting, while Section 2(1) of the (MSSA) excludes the maintenance benefit to permanent life partners who have undertaken reciprocal duties of support.

The Court was called on to determine whether the provisions of the ISA and MSSA were unconstitutional and invalid, and if so, what would be a just and equitable remedy.

The Constitutional Court found that both section 1 of the ISA ands section 2 of the MSSA are unconstitutional and that it should be read to include a partner in a life partnership compliant with the test of reciprocal duties of care, maintenance, and support. The Court gave Parliament 18 months to amend the two pieces of legislation.

Significantly, this judgment now permits heterosexual permanent life partners who have undertaken reciprocal duties of support to claim inheritance and maintenance from the deceased partner’s estate.

Though the judgement allows for a claim for either maintenance or in terms of Intestate succession, the claims are not automatic and is still necessary to prove the existence of a universal partnership, an agreement, even if implied.

Estate planning includes the careful consideration of assets and liabilities, claims, taxes and obligations before the executor can distribute the estate. Proving a valid claim, is still costly and could delay the process to finalising the estate.

Careful estate planning to provide for administration cost, liabilities, taxes and other obligations and replacement of income is important to take care of your loved one. To avoid intestate succession, it is important to have a valid Will drafted that express your wishes and intention of whom you want to benefit from your estate, even when couples choose to cohabitate.

It is, therefore, important to speak to a specialist to discuss your estate plan and seek advice to have a valid Will drafted.


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