Can a fiancé claim from their deceased partner's estate?

accreditation
"Unless they were named as a beneficiary in the deceased's will, unfortunately not." Photo: Getty Images.
"Unless they were named as a beneficiary in the deceased's will, unfortunately not." Photo: Getty Images.

Can a fiancé claim from their deceased partner's estate?

The short answer

Yes, life partners "in a relationship intended to be permanent" should be regarded as spouses in terms of inheriting intestate estates.

The whole question

Dear Athalie

My sister's partner of 12 years passed away in February. They were planning to get married next year, and he is the father of her two daughters, aged 5 and 3.

Since his passing, his family has turned against my sister. They have taken his car and other belongings, and chased my sister and her toddlers out of the house. Does my sister have any claim to her fiancé's estate?

Read: What happens if a child is left assets from a deceased estate?

The long answer

The Constitutional Court ruled on 31 December 2021 that life partners "in a relationship intended to be permanent" should be regarded as spouses in terms of inheriting intestate estates.

This was because Section 9 of the Constitution does not allow unfair discrimination on the basis of marital status. That means that a person who is in a permanent relationship, but is not married, must be regarded as a spouse.

For this reason, the Constitutional Court Section has ordered that Section 1 of the Intestate Succession Act of 1987 and Section 2 of the Maintenance of Surviving Spouses Act of 1990 are unconstitutional because they exclude life partners from the definition of spouse.

These laws must now be read to include a life partner whose support, care and maintenance in the relationship are proven. The court called this "the reciprocal duty of support between life partners."

Parliament has been given 18 months to amend the law.

Your sister should take the death certificate and her ID and her late fiancé's ID and the children's birth certificates and any other documentation about the house or the car that she has to the Master of the High Court and ask for assistance, but now she is asking as a spouse.

The Master may well know about the Constitutional Court ruling, but if he doesn't, this is the name and date of the case: Bwanye v Master of the High Court, Cape Town and Others. The judgment was given on 31 December 2021.

She could also consult the following organisation, which was a friend of the court in the above case:

The Women's Legal Centre 

Email: info@wlce.co.za

Tel: 079 421 8197

Correction (19-05-2022): An earlier version of this response stated that it was not possible for unmarried partners to claim from the deceased's intestate estate. This has been amended based on information from a 31 December 2021 judgment in the case of Bwanye v Master of the High Court, Cape Town and Others. Apologies for the confusion.

Wishing you the best,

Athalie.

This article is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.

Read the original on GroundUp here.

Chatback:

Share your stories and questions with us via email at chatback@parent24.com. Anonymous contributions are welcome.

Don't miss a story!

For a weekly wrap of our latest parenting news and advice sign up to our free Friday Parent24 newsletter.

Follow us, and chat, on Facebook and Twitter.

We live in a world where facts and fiction get blurred
In times of uncertainty you need journalism you can trust. For 14 free days, you can have access to a world of in-depth analyses, investigative journalism, top opinions and a range of features. Journalism strengthens democracy. Invest in the future today. Thereafter you will be billed R75 per month. You can cancel anytime and if you cancel within 14 days you won't be billed. 
Subscribe to News24