Rights of a common law partner at death

Rights of a common law partner at death

So many South Africans today are living together as man and wife without getting married and this occurrence almost doubles each year.  The aim of this article is to look at the rights of a surviving partner at death.

Currently in South Africa, there is no law regulating the rights of partners in a common law partnership.  This means that you are not automatically seen as the spouse of your partner.

The South African courts have on occasion come to the assistance of couples in the form of a universal partnership.  This subject does not form part of our discussion today.


In terms of the Intestate succession Act (rules applicable when a person dies without having a Will), a partner is not automatically entitled to an inheritance from his or her partner’s estate, no matter how long they have lived together.

For a partner to inherit, such partner must be a nominated beneficiary in the last Will of the deceased partner.

Estate Duty:

For Estate Duty purposes, a permanent life partner who is a nominated beneficiary in the Will of the deceased partner is seen as a spouse and will qualify for the “spousal benefit exemption”.   This means that no Estate Duty will be payable on the value of the inheritance received by the surviving partner.

Claiming maintenance from the estate:

In most cases a surviving partner who is not entitled to inherit from the estate of his or her deceased partner, would like to claim maintenance against the estate.  This is normal as both parties contribute to the common household.  With the one partner deceased, the financial obligations of the other partner become more strenuous.

A surviving partner cannot rely on the Maintenance of Surviving Spouse Act to secure maintenance.  There is no obligation on the deceased partners’ estate to maintain the survivor and the survivor has no enforceable right to claim maintenance.

Pension fund monies:

A permanent live partner may be a nominated beneficiary on the deceased partners’ pension fund and may benefit through his or her nomination.  He or she may also benefit if he or she qualifies as a “dependent” in terms of section 37C of the Pension Fund Act.


In order to ensure your partner benefits from your estate, it is crucial that you include him or her as a beneficiary in your Will and estate planning.