Cohabitation and death – How to protect yourself

Peter Prentice, a specialist consultant in Estate Planning and Administration for audit, advisory and tax firm, BDO.

Did you know that ‘Common Law’ isn’t an accepted legal concept in SA?

If you are not married and not in a civil partnership – a legally recognized union of a same-sex couple, with rights similar to those of marriage - your partner is not legally entitled to anything when you die and vice versa, you are not legally entitled to anything of your partner’s when they die.

Many people mistakenly believe that they are protected as “common law” spouses. However, South African law does not recognise the concept of a "common law marriage". This means that no amount of time spent living with another person will convert a cohabitation relationship into a marriage.

So how do you protect yourself and/or your partner in the event of one of you dying?

According to Peter Prentice, a specialist consultant in Estate Planning and Administration for audit, advisory and tax firm, BDO South Africa, nowadays it is common for people to enter into a permanent relationship without no intention of marrying.

“However, there is currently limited legal protection afforded to partners in such relationships. Couples who live together have hardly any rights compared with married couples or civil partners, and most only discover this when their partner has died. As such, where the relationship ends as a result of death, a party may face dire consequences due to the fact that there was no prior agreement with regard to assets, maintenance and the like.”

Prentice advises that one way to ensure that both parties are protected in the event of one partner dying is to draw up a will. Another way is to enter into a formal contract.

“This is imperative if you want your partner to benefit from any of your assets or even to be able to stay in your home after your death. However long you live together, all your property and assets will go to your blood relations rather than your partner if you die without a will or contract which stipulates otherwise,” says Prentice.

“Leaving property to your partner through your last will or through a trust is a good start. A trust would allow you to provide a home or other assets for the remainder of your partner’s life, then have those assets revert 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.”
“Couples should invest the time and money to visit an estate planner. By working with your estate planner, you can endow your partner with many of the rights and protections that married couples enjoy as a matter of law,” concludes Prentice.