Bwanya v Master of the High Court: What the Constitutional Court Ruling Means for Unmarried Partners

Before 2021, if you were not married — regardless of how long you had been in a committed relationship, how intertwined your finances were, or how clearly your partner would have wanted you to inherit — South African law treated you as a stranger when they died. The Intestate Succession Act 81 of 1987 gave you nothing. The Maintenance of Surviving Spouses Act gave you nothing. Decades of cohabitation counted for nothing in the eyes of the estate.

The Constitutional Court ended this in Bwanya v Master of the High Court, Cape Town and Others.

The Background: Gladys Bwanya's Situation

Gladys Bwanya and Victor Ruch had been in a permanent life partnership for years. They lived together, they supported each other financially, and their relationship was marriage-like in every practical sense — except that they had not gone through a legal marriage ceremony. Victor died without a will. Gladys was left with no legal claim to the estate under the Intestate Succession Act, and no claim for maintenance under the Maintenance of Surviving Spouses Act, because neither Act recognized permanent life partners.

The Western Cape High Court initially ruled in her favour at first instance. The matter ultimately reached the Constitutional Court.

The Ruling: Constitutional Court, December 2021

The Constitutional Court declared the exclusion of surviving partners of permanent life partnerships from the Intestate Succession Act to be unconstitutional and invalid. The Court held that this exclusion violated the constitutional rights to equality and dignity, read together with the right to have one's family life respected.

Critically, the Court extended its order to cover both the Intestate Succession Act and the Maintenance of Surviving Spouses Act. A surviving permanent life partner who undertook reciprocal duties of support with the deceased is now entitled to:

1. Inherit intestate — to receive the same share of the estate as a surviving spouse would receive under the Intestate Succession Act
2. Claim maintenance from the deceased estate — the same right to claim against the estate for reasonable maintenance needs as would be available to a surviving spouse under the Maintenance of Surviving Spouses Act

The ruling applies to both heterosexual and same-sex permanent life partnerships.

What "Reciprocal Duties of Support" Means

The right to inherit and the right to claim maintenance are not automatic for all cohabiting couples. The surviving partner must establish that the relationship involved mutual duties of support — that both partners supported each other financially and emotionally in a way that resembled a marriage.

Evidence that supports this includes:

• Duration of cohabitation (years, not weeks)
• Shared financial accounts or shared expenses
• Shared property or assets
• The deceased naming the partner as a beneficiary on life insurance or retirement fund nominations
• Evidence that the couple presented themselves publicly as a committed partnership
• Witnesses who can attest to the nature of the relationship

How to Assert the Right: Form MBU 19

To establish a permanent life partnership to the Master of the High Court's satisfaction — in the absence of a marriage certificate — the surviving partner must submit Form MBU 19: the Affidavit of Partnership or Subsisting Marriage.

This affidavit must demonstrate:

• The length and nature of the cohabitation
• The financial interdependence of the partners
• The mutual intention to form a permanent, marriage-like union

Supporting documentation should accompany the affidavit: joint bank statements, lease or bond agreements showing both names, utility accounts, photographs, correspondence, and affidavits from mutual friends or family members who can attest to the relationship's character.

The Master does not automatically accept the claim. Be prepared for the Master's Office to raise queries or request additional evidence.

What If the Deceased Left a Will?

The Bwanya ruling specifically addresses intestate succession — what happens when there is no valid will. If the deceased left a valid will that either names the life partner as a beneficiary or explicitly excludes them, the will governs. The Bwanya ruling does not override a valid will.

However, even where there is a will, the maintenance claim under the Maintenance of Surviving Spouses Act may still apply if the will does not make adequate provision for the surviving partner's maintenance needs. This is a separate application to the High Court and is more complex.

Practical Implications for Couples in Long-Term Partnerships

If you are in a committed life partnership without a formal marriage, the Bwanya ruling is a legal safety net — but it is not a substitute for a properly drafted will. Proving a permanent life partnership to the Master's satisfaction after death is time-consuming, emotionally demanding, and uncertain. A will that explicitly names your partner as heir is far more reliable than a post-death claim under Bwanya.

If your partner has recently died without a will and you are in this situation, act quickly:

1. Do not delay reporting the estate to the Master
2. Begin gathering evidence of your partnership immediately
3. Submit the MBU 19 affidavit with as much supporting documentation as possible
4. Consider engaging a family law attorney if the deceased's relatives contest your claim

The families of the deceased sometimes resist the surviving partner's claim — particularly where the relationship was not widely accepted, or where the extended family expects to inherit. The Bwanya ruling gives you legal standing, but you will need to enforce it.

Where This Fits in the Estate Administration Process

A surviving life partner who successfully establishes their claim under Bwanya steps into the same position as a surviving spouse under the Intestate Succession Act. They receive the same share calculated under the child's share formula, and the same maintenance rights against the estate.

The estate administration then proceeds through the normal channels: executor appointment, opening an "Estate Late" bank account, advertising for creditors, drafting the Liquidation and Distribution account, SARS compliance, and final distribution.

For a complete guide to claiming under Bwanya, navigating the Master's Office, and managing every stage of estate administration in South Africa, the South Africa Estate Settlement Guide covers the legal framework and practical steps in full.

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