Step up

Angelique Visser, Director of Baraza Wealth and a National Councillor of FISA.

Every August we celebrate the economic, political and social achievements of women. We honour their work and the influence that they have in so many lives. Evidence is loud and clear: You strike a woman, you strike a rock!

Whilst we recognise the power of women, it is concerning that so many women do not take charge of their personal financial well-being. More than 75% of South Africans die without a will every year and most women do not draft a will or know what the impact will be if a partner or spouse dies without leaving a will that provides for them.

Your relationship determines how you will inherit

It is important that women understand that the Intestate Succession Act now applies to every South African who dies without a will. In terms of this Act, your estate devolves according to a specific “formula”. A single person’s estate will pass to her children and failing children, to parents and failing parents, to siblings.

If she is in a relationship, the type of relationship will determine if she will be allowed to inherit. A woman married in terms of the Marriage Act and Civil Union Act will inherit her deceased partner’s entire estate when the deceased has no children. If there are children, the spouse will inherit R250 000 or a child’s share, whichever is the greater. A child’s share is calculated by dividing the estate between the total number of children and spouse of the deceased.

To cater for customary law, the Reform of Customary Law of Succession Act was introduced and has to be read with the Intestate Succession Act. As the definitions of “descendants” and “spouses” both include seedraiser*) women and women in woman-to-woman marriages, they benefit twice as they will be entitled to a spouse’s share as well as a child’s share from the intestate estate if the Act is interpreted literally. It surely could not have been the intention of the legislator to benefit them twice as much as the actual surviving spouse/s? In practice the Master of the High Court regards these woman as “spouses” only and therefore does not allow them to benefit both as spouses and descendants. This position could however be challenged in future. If the deceased had more than one wife, each wife will be entitled to R250 000 or a child’s share, whichever is the greater.

As Muslim and Hindu marriages do not meet all the legal requirements, they are not recognised as marriages in South Africa. The Constitutional Court did however extend the meaning of “spouse” in the Intestate Succession Act to include parties in monogamous Muslim marriages and spouses in polygynous Muslim marriages. The court later also included a party to a monogamous Hindu marriage as a spouse for purposes of the Intestate Succession Act.

Although the courts have been very accommodating to include couples in relationships that are not recognised as marriages, this protection does not extend to all relationships. The current position is that same-sex couples will inherit intestate from each other because of the Constitutional Court ruling in the matter of Gory v Kolver. The Master of the High Court will call for an affidavit as proof that they lived together as spouses and undertook a mutual agreement of support. The court however made it clear in the matter of Volks v Robinson that, as there is nothing standing in the way of heterosexual couples to get married, such life partners cannot be regarded as “spouses” for the purposes of the Intestate Succession Act. Heterosexual parties living together will therefore not be entitled to inherit from one another in the event of the death of one of the parties and have to ensure that they either draft a will or enter into an agreement to deal with the distribution of their assets to protect one another. The legal view is that there should not be a distinction between same-sex and heterosexual couples who live together as spouses as everyone may enter into marriage since the Civil Union Act came into operation, but until this is challenged in a court of law, the position remains as above.

UN Secretary-General Ban Ki-moon said: “When we unleash the power of women, we can secure the future for all.” Power however brings responsibilities and women need to step up and take charge of their and their families’ financial well-being too.

*) Act definition: A woman, other than the spouse of the deceased, with whom he had entered into a union in accordance with customary law for the purpose of providing children for his spouse’s house.