Cohabitation Inheritance Rights in South Africa After Bwanya

For decades, opposite-sex unmarried cohabiting partners in South Africa had zero inheritance rights if their partner died without a will. The surviving partner could live in the same house for 30 years, raise children together, share every financial obligation — and inherit nothing. The Constitutional Court changed this on 31 December 2021 in Bwanya v Master of the High Court, ruling that excluding permanent life partners from the Intestate Succession Act was unconstitutional.

Parliament gave permanent effect to this ruling through the Judicial Matters Amendment Act 15 of 2023, effective 3 April 2024. Surviving permanent life partners can now claim maintenance and inherit from an intestate partner's estate on the same basis as a married spouse.

But the right does not flow automatically from living together.

What You Must Prove

The Master of the High Court will not simply accept a claim that you were someone's life partner. The survivor bears a strict burden of proof to demonstrate three things:

A permanent life partnership existed — not a casual relationship, not an on-again-off-again arrangement, but a committed, long-term partnership with the intention of permanence.

The partners undertook reciprocal duties of support — each partner contributed to the other's financial and emotional wellbeing. This is a factual inquiry, not a checkbox exercise.

Financial interdependency — the Master looks for concrete evidence that the partners' lives were financially intertwined.

The Evidence That Matters

The kind of documentation the Master will accept:

• Joint bank accounts or shared household expense records
• A joint lease or bond agreement on shared property
• Life insurance policies naming the partner as beneficiary
• Medical aid membership listing the partner as a dependant
• Shared utility accounts (electricity, water, rates)
• Affidavits from family members, friends, or community leaders confirming the partnership
• Evidence of co-parenting — school records, medical records listing both partners as contacts
• Photographs, travel records, and correspondence showing a shared domestic life

Without this paper trail, the Master will reject the intestate claim. The surviving partner would then need to approach the High Court for a declaratory order — a process that costs R30,000 to R80,000 in legal fees and can take over a year.

The Bwanya Ruling in Context

The Bwanya case overturned the earlier Constitutional Court position in Volks v Robinson (2005), which held that cohabiting partners had voluntarily chosen not to marry and therefore voluntarily forfeited the legal protections of marriage. The Bwanya court found this reasoning violated the constitutional rights to equality and human dignity.

Same-sex partners already had intestate inheritance rights following Gory v Kolver and Laubscher v Duplan, alongside the protections of the Civil Union Act 17 of 2006. The Bwanya ruling extended equivalent rights to opposite-sex permanent life partners, closing the gap.

What Bwanya Does Not Cover

The ruling does not create automatic property-sharing rights during the relationship. It applies specifically to intestate succession (inheritance when there is no will) and maintenance claims after death. It does not give unmarried partners the same property rights as married couples — there is no automatic 50% claim on a jointly accumulated estate the way there is in a marriage in community of property.

It does not create an automatic inheritance share if the deceased left a valid will that excludes the partner. Bwanya's intestate-inheritance remedy operates when there is no will; the partner's maintenance claim under the Maintenance of Surviving Spouses Act is separate and can still be made where a will exists.

Why a Will Is Still Essential

Even after Bwanya, relying on intestate succession as an unmarried partner is risky. You must prove the partnership to a sceptical Master's Office, gather documentary evidence during a period of grief, and potentially litigate against the deceased's biological family members who may contest your claim.

A valid will that names the partner as a beneficiary bypasses all of this. The executor presents the will to the Master, and the named beneficiary inherits — no proof of partnership required.

The South Africa End-of-Life Planning Guide includes a Cohabitation Evidence Checklist for partners who want to build their evidentiary file now, while both partners are alive and able to gather documentation together.

Frequently Asked Questions

How long do you need to live together to qualify as a permanent life partnership?

There is no statutory minimum period. The enquiry is qualitative, not quantitative — the court and Master's Office look at the nature of the relationship, not its duration. A two-year partnership with deep financial interdependence and reciprocal support may qualify, while a ten-year arrangement where partners maintained completely separate financial lives may not.

Can a life partner claim maintenance from the deceased's estate?

Yes. The Maintenance of Surviving Spouses Act now applies to permanent life partners following the Bwanya ruling. The surviving partner can claim reasonable maintenance from the estate, subject to the Act's requirements.

Does Bwanya apply to customary law relationships?

The Bwanya precedent applies to permanent life partnerships that do not qualify as marriages under any legal system. If the relationship meets the requirements of a customary marriage under the Recognition of Customary Marriages Act, the partner's rights are governed by that Act instead, which provides even stronger protections.

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