What Happens When Your Life Partner Dies Without a Will?

More South Africans than ever are choosing to live together without getting married. It is a perfectly valid choice — but it comes with legal consequences that most couples never think about until it is too late.

One of the most serious of those consequences involves what happens when one partner dies without leaving a valid will. The answer may surprise you, and it has changed significantly in the last two years.

The old rule — and why it felt so unfair

Until recently, the law was stark. If your unmarried partner died without a will, you inherited nothing. It did not matter how long you had been together, how entwined your lives were, or how completely you had built a home and a life with that person. The Intestate Succession Act — the law that determines who inherits when there is no will — only recognised married spouses. Unmarried life partners were invisible to it.

The same was true for maintenance. A surviving spouse could claim maintenance from a deceased spouse's estate if needed. A surviving life partner could not.

This produced deeply unjust outcomes, and the courts eventually said so.

What changed — and why

In a landmark 2021 judgment, Bwanya v Master of the High Court, the Constitutional Court found that excluding permanent life partners from both the Intestate Succession Act and the Maintenance of Surviving Spouses Act was unconstitutional. The exclusion discriminated unfairly on the grounds of marital status and violated the constitutional rights to equality and dignity.

Parliament responded. The Judicial Matters Amendment Act 15 of 2023 came into force on 3 April 2024 and formally amended both statutes to include surviving life partners.

What the law says now

A surviving life partner now has two potential rights against a deceased partner's estate.

The right to inherit. If your partner dies without a valid will, you may now be recognised as an heir under the Intestate Succession Act — on the same basis as a surviving spouse. This means you could inherit a share of the estate alongside the deceased's children, or the entire estate if there are no children.

The right to claim maintenance. Even where there is a will, a surviving life partner may now claim reasonable maintenance from the estate under the Maintenance of Surviving Spouses Act, to the extent they cannot provide for their own needs from their own means. This right exists whether the deceased died with or without a will.

Both rights, however, come with an important qualification.

The catch — you have to prove the relationship

Neither right is automatic. To benefit from these protections, the surviving partner must prove two things:

First, that the relationship was a permanent life partnership — not a casual or short-term arrangement, but a committed relationship akin to marriage in its permanence and mutual commitment.

Second, that the parties had reciprocal duties of support — that they genuinely supported each other emotionally, practically, or financially in the way that partners in a family unit do.

This is not always easy to prove, particularly through the formal process of a deceased estate administration. Courts and the Master of the High Court will want evidence. The surviving partner bears the burden.

Why a will still matters — more than ever

You might think that the new law means life partners are now protected, so a will is less important than before. The opposite is true.

The new intestate succession right only arises if there is no valid will, or if the will fails. A valid, current will that deals with the entire estate overrides the intestacy rules completely. Your partner inherits only what you choose to leave them — nothing more, nothing less.

This gives you control. Without a will, the law decides who inherits and in what proportion. With a well-drafted will, you decide. You can provide for your partner exactly as much or as little as you choose, and you can ensure your other beneficiaries — children, family members — are provided for in the way you intend.

The maintenance claim is different: it can arise against a testate estate too. But a generous and carefully calibrated bequest to your partner — combined with their own financial means and the circumstances of the relationship — goes a long way toward satisfying or extinguishing any such claim.

The practical takeaway

If you are living with a partner without being married, two things matter above everything else.

Make a will. Do not leave your estate to be distributed by a law that does not know you, your relationship, or your wishes. A will is the single most effective step you can take to protect both your partner and your other loved ones.

Consider a cohabitation agreement. A written agreement between you and your partner can record what each of you owns, what your financial arrangements are, and what you each understand your rights and responsibilities to be. It does not replace a will — but it creates an important evidential record that supports it.

The law has moved in the right direction. But it has not moved far enough to make careful planning unnecessary. If anything, the new rights for life partners make it more important — not less — to have your affairs properly in order.

This article is intended for general information purposes only and does not constitute legal advice. The law in this area has changed recently and continues to develop. If you are in a life partnership and have questions about your legal position or your estate, please contact André Nel Attorneys for advice tailored to your specific circumstances.