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Permanent Life Partners: a Surviving Partner’s Right to Claim Spousal Maintenance from their Decease



Historically, only legally married partners had a right to claim spousal maintenance from the estate of their deceased partner. However, through case law the definition of “surviving spouse” has been developed to expand on who qualifies as a “surviving spouse” and ultimately, who is entitled to claim from the estate of their deceased partner.


In a recent case before the Constitutional Court, the applicant’s life partner passed away, effectively intestate (the sole heir to his estate, as stipulated in his Last Will and Testament, had predeceased him and was therefore unable to inherit his estate). The applicant lodged a claim, for among other things, spousal maintenance with the executor of the deceased partner’s estate which was rejected on the basis that, at the time of her life partner’s death, her and her life partner were not legally married.


Ultimately, the Constitutional Court ruled that the definition of “survivor” in relation to a “surviving spouse” in terms of section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 (“the Act”) is constitutionally invalid to the extent that the definition excludes:


“…the surviving partner of a permanent life partnership… in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate”. (own emphasis added).


In reaching its decision, the Constitutional Court took into account numerous factors pertaining to the applicant and her deceased partner, including but not limited to:


  • the deceased was the applicant’s life partner;

  • the applicant and the deceased had been living together in a permanent, stable and intimate relationship;

  • the applicant and the deceased were engaged (unfortunately the applicant’s life partner passed away 2 months before Labola negotiations were to commence);

  • their partnership had the same or similar characteristics of a marriage;

  • the deceased supported the applicant financially and emotionally;

  • the deceased introduced her to people as his wife;

  • they had undertaken reciprocal duties of support; and

  • they intended to start a family together.


As a result of the Constitutional Court’s ruling, among other things, the definition of “survivor” now includes the surviving partner of a permanent life partnership in which the partners undertook reciprocal duties of support in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate.

In making its ruling, the Constitutional Court not only expanded the scope of who is entitled to claim spousal maintenance from a deceased partner’s estate, it also serves to recognise that, while entering into a marriage affords you certain legal protection, this is not the only form of relationship worthy of such legal protection and stressed that “permanent life partnerships are a legitimate family structure and are deserving of respect and, given recent developments of the common law, entitled to legal protection.”

Despite this significant development in our law, the best approach when it comes to your Estate is preparation and foresight. It remains vital to ensure that you have a comprehensive and uniquely crafted Will and Testament regulating the winding up of your estate. Should you require any assistance, Kern, Armstrong and Attorneys is willing and able to assist with all your Estate related queries.


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