If you are in a life partnership, consult your Fiduciary Specialist to ensure your partner does inherit and your wishes are executed.
By Ken Newport. E-mail Ken Newport
Is a permanent life partner an intestate heir?
The Intestate Succession Act states that the surviving spouse has a legal right to inherit from the estate of his or her partner if the person dies without a Will. The Act however doesn’t provide a definition for ‘spouse’ or make any reference to a permanent life partner. In a landmark court case, Gory vs Kolver CCT 28/06, the Constitutional Court ruled that long-term same-sex life partners should be regarded as legitimate ‘spouses’ for intestate succession purposes.
However, the subsequent enactment of the Civil Unions Act states that persons in a same sex relationship shall only be legally regarded as ‘spouses’ if they have entered into a marriage or civil partnership in terms of the Civil Union Act. Therefore only if a surviving partner in a permanent life partnership has entered into a marriage or civil union will they be entitled to inherit from the deceased partner’s intestate estate.
Can permanent life partners claim maintenance?
The Maintenance of Surviving Spouses Act defines a ‘survivor’ as the surviving spouse in a marriage dissolved by death. The survivor is legally entitled to claim against the estate of the deceased spouse for the provision of his or her reasonable maintenance needs until his or her death and in so far as he or she is not able to provide for these needs from his or her own means and earnings.
The Act however does not provide for a lifelong partnership, where no marriage agreement has been entered into. In another historical court case, Volks NO vs Robinson and Others 2005 (5) BCLR 446 (CC), the Constitutional Court decided that a surviving partner in a heterosexual life partnership with no concluded marital standing could not be regarded as a surviving ‘spouse’ for purposes of this Act.
Does a bequest to a permanent life partner qualify for the spousal deduction for estate duty?
In terms of the Estate Duty Act a spouse is now defined, in relation to any deceased person, as a person who at the time of death of such deceased person was the partner of such person in a same-sex or heterosexual union, which the Commissioner is satisfied is intended to be permanent.
Therefore any amounts accruing to the defined spouse in terms of the deceased person’s Will qualify for the Section 4q deduction for estate duty.
If you are in a life partnership, consult your Fiduciary Specialist to ensure your partner does inherit and your wishes are executed.
This article was taken from Mastermind, the official monthly newsletter of Sanlam Private Investments, a division of Sanlam Ltd. September 2012. Visit the SPI Website
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