Cohabitation is on the rise in South Africa, with many couples choosing to live together without getting married. While this arrangement offers flexibility, it also carries significant legal risks, particularly when it comes to inheritance. Unlike married couples, cohabiting partners do not automatically inherit each other’s assets in the absence of a will. This article explains why having a will is essential for cohabiting partners and the potential risks of not having one.
The Legal Framework: South African Inheritance Law
South African law does not recognize cohabitation as a legal union, which means cohabiting partners have no automatic rights to inherit from each other unless specified in a will. The law governing inheritance in such cases is the Intestate Succession Act 81 of 1987, which outlines the distribution of assets when someone dies without a will.
Under this Act, the deceased’s assets are distributed to their spouse (if married), children, or other blood relatives. Cohabiting partners are excluded, regardless of the length or nature of the relationship.
Risks of Not Having a Will
- No Automatic Inheritance
If one partner dies without a will, the surviving partner may be left without any legal claim to the deceased’s assets, including shared property or personal belongings. - Loss of Shared Assets
Even if both partners contributed financially to assets like property or vehicles, the surviving partner may have no legal right to retain ownership unless their share is explicitly documented in the title deed or other agreements. - Family Disputes
In the absence of a will, the deceased’s family members may claim all assets, leaving the surviving partner with little or nothing. This can lead to prolonged legal battles and emotional distress. - Exclusion from Decision-Making
Without legal documentation, the surviving partner may have no say in critical decisions, such as funeral arrangements or the management of shared finances. - Impact on Dependents
If the couple has children together, failing to have a will can complicate guardianship and the distribution of assets, potentially leaving children financially vulnerable.
Why Cohabiting Partners Need a Will
- Ensure Your Partner Is Protected
A will allows you to specify who should inherit your assets, ensuring your partner is financially secure after your passing. - Avoid Legal Disputes
By clearly stating your intentions, a will can prevent family disputes and ensure your wishes are carried out. - Provide for Minor Children
If you have children, a will allows you to appoint guardians and set up trusts to protect their inheritance. - Streamline the Estate Process
A valid will simplifies the administration of your estate, reducing costs and delays for your loved ones. - Document Shared Assets
A will ensures that your contributions to jointly owned assets are recognized and preserved.
Real-Life Example: The Importance of Having a Will
Consider a Johannesburg couple who had lived together for over 15 years. When one partner passed away without a will, the deceased’s estranged family claimed the entire estate, including the house and car the couple had shared. The surviving partner had no legal recourse and lost everything, despite having contributed significantly to the assets.
Drafting a Will: Key Considerations for Cohabiting Partners
- Detail Your Assets
List all assets, including property, bank accounts, investments, and personal belongings. - Specify Beneficiaries
Clearly name your partner and other beneficiaries to avoid disputes. - Appoint an Executor
Choose a trusted person or entity to administer your estate. - Seek Legal Advice
A professional attorney can ensure your will is legally sound and meets your specific needs. - Update Your Will Regularly
Review and update your will to reflect changes in your relationship or financial circumstances.
Engelsman Magabane Incorporated: Your Estate Planning Experts
Drafting a will is one of the most important steps you can take to protect your partner and loved ones. At Engelsman Magabane Incorporated, we specialize in estate planning and inheritance law, ensuring your assets are distributed according to your wishes. Contact us today to safeguard your future.
Conclusion
For cohabiting partners, having a will is not just a good idea—it’s a necessity. Without one, your partner may face significant financial and legal challenges after your passing. Protect your relationship and assets by drafting a legally binding will today.