In South Africa, the complexities of estate planning for unmarried couples have long been a source of confusion and concern. A key issue is whether life partners can benefit from the R3,500,000 estate duty abatement typically available to married couples. This article explores the current legal landscape and what it means for life partners.
Understanding the Estate Duty Abatement
The Estate Duty Act provides for a basic deduction of R3,500,000 from the net value of an estate before calculating estate duty. For married couples, any unused portion of this abatement can roll over to the surviving spouse’s estate, potentially doubling the deduction to R7,000,000.
The Challenge for Life Partners
Historically, life partners have not automatically qualified for this benefit. The Estate Duty Act’s definition of “spouse” has traditionally been limited to those in legally recognised marriages or civil unions. This has left many life partners in a precarious position when it comes to estate planning.
Recent Legal Developments
Recent years have seen significant progress in recognising life partnerships:
- The Bwanya v Master of the High Court case (2021): This Constitutional Court judgment declared the exclusion of life partners from the Intestate Succession Act and Maintenance of Surviving Spouses Act unconstitutional.
- Judicial Matters Amendment Act 15 of 2023: This Act, which came into effect on April 3, 2024, amended the Intestate Succession Act to include permanent life partners under the definition of “spouse” where they have undertaken reciprocal duties of support.
However, these changes have not automatically extended to all aspects of estate duty.
Relevant Legislation
Estate Duty Act 45 of 1955
Section 4(q): This section provides that property accruing to a “spouse” is deductible from the dutiable estate of the deceased. The term “spouse” traditionally referred to legally married individuals but has been interpreted more broadly in light of recent legal developments.
R3,500,000 Abatement: Every estate is entitled to a basic deduction of R3,500,000. Any unused portion of this abatement can roll over to the surviving spouse’s estate if they qualify under Section 4(q).
Intestate Succession Act 81 of 1987
Following the Bwanya judgment, Section 1(1) was declared unconstitutional for excluding life partners from inheriting intestate estates. Parliament was ordered to amend this section to include life partners who had undertaken reciprocal duties of support.
Maintenance of Surviving Spouses Act 27 of 1990
The Constitutional Court also declared Section 1 unconstitutional for excluding life partners from claiming maintenance from a deceased partner’s estate.
The Bwanya Case: A Turning Point
The case of Jane Bwanya v Master of the High Court, Cape Town & Others (2021) was pivotal in reshaping the legal landscape for life partners:
- Facts: Jane Bwanya was in a permanent life partnership with her late partner. They lived together, were engaged to be married, and undertook reciprocal duties of support. When her partner passed away intestate, she was excluded from inheriting under the Intestate Succession Act and could not claim maintenance under the Maintenance of Surviving Spouses Act because these laws applied only to legally married spouses.
- Judgment: The Constitutional Court ruled that excluding life partners from these Acts was discriminatory and unconstitutional. It held that “spouse” should include a partner in a permanent life partnership with reciprocal duties of support.
- Implications: While this judgment primarily addressed inheritance and maintenance rights, it also highlighted broader principles regarding the recognition of life partnerships as legitimate family structures deserving legal protection.
Current Status for Life Partners
As of 2025, the situation for life partners regarding the R3,500,000 abatement is as follows:
- No Automatic Entitlement: Life partners cannot automatically claim the abatement or its rollover from their deceased partner’s estate.
- Potential Recognition: The Estate Duty Act does allow for the recognition of life partners as “spouses” under certain circumstances.
- Burden of Proof: The onus is on the surviving partner to prove to SARS that their relationship qualifies as a permanent life partnership with reciprocal duties of support.
- Evidence Required: Proof may include cohabitation agreements, affidavits, joint ownership documents, or evidence of shared financial responsibilities.
- Case-by-Case Basis: SARS evaluates each case individually, considering the nature and duration of the relationship.
Implications for Estate Planning
Given these complexities, life partners should consider the following:
- Proper Estate Planning: Engage in comprehensive estate planning, including drafting a valid will.
- Document the Relationship: Keep records that demonstrate the permanence and financial interdependence of the partnership.
- Consider a Cohabitation Agreement: This can formalise the terms of the relationship and may strengthen a claim for recognition.
Looking Ahead
As social norms continue to evolve, there’s growing pressure for the law to adapt and provide clearer protections for life partners. However, until more comprehensive legal changes are made, life partners must take proactive steps to protect their interests in estate matters.
Conclusion
While the R3,500,000 estate duty abatement is not automatically available to life partners, there are pathways for recognition under certain circumstances. By understanding the current legal landscape and taking appropriate planning measures, life partners can work towards securing their financial futures and protecting their partners’ interests in the event of death.
