Intestate Succession and the Rights of Unmarried Partners (Mistresses)

Issue: Is a mistress eligible to inherit from their married lover’s estate?

Here’s a question from Nozuko:

One time, I was waiting for an Uber outside our office buildings. When it arrived, another gentleman (let’s call him Lutho) and I walked toward it. It turns out he had ordered a Bolt, and our respective e-hailing apps showed the same car. The driver played dumb, but what he had done was obvious. He accepted both rides on both the Uber and the Bolt platforms, hoping we would agree to share the car but not the fees. Against all logic, we did just that. Please don’t ask me why. As it happened, we hit it off and even exchanged numbers. That seemingly inconspicuous ride would set the stage for a whirlwind romance, the heights of which I could never have imagined.

Lutho and I dated for two months before moving into my flat. About a month later, I was pregnant. I gave birth to our beautiful son a year after that Uber/Bolt ride. I was on top of the world. Lutho loved us so much and took the best care of us. During my pregnancy, he treated me like a queen and told me that as soon as I left work for my maternity leave, I was not going back because “no queen of mine will ever have to work”.

He would take care of me. Our love and dreams soared, reaching heights that felt invincible but would all come crashing down. Tragedy struck when Lutho became the victim of a fatal car accident one night on his way home, leaving our seven-month-old son fatherless. The devastation was immeasurable, but the nightmare had only just begun.

It would transpire that Lutho was married the whole time. He and his wife had been having problems, so meeting me gave him a way out. However, their separation never progressed to a divorce. Apparently, they did not even consider divorce even in the year and a half that Lutho and I lived together. Perhaps blinded by love, I had missed the signs that the man I thought was the love of my life actually had a wife and two children living just 20 kilometres away from our blissful bubble.

Lutho’s wife, to her credit, allowed me to attend the funeral without blame. However, her benevolence ended there. She informed me that Lutho left no will, so I should not expect to inherit any part of his estate. The disbelief and confusion set in. How could this be? We had lived together, he promised to care for me, and we shared a son. How could I be excluded from his estate?

From The Legal Desk:

Thanks for your message, Nozuko. Condolences for your loss. Sadly, all too many women find themselves in a similar situation where what appears to be the perfect relationship ends in the doldrums through no fault of their own. Succession can be tricky at the best of times, even worse when you are effectively a “third wheel”. Let’s take a look at the legals…

When a person dies without leaving a will, we say they have died intestate. In such an instance, the Intestate Succession Act (ISA)¹ dictates how the deceased’s estate devolves. Section 1(1)(c)(i-ii) of the ISA would be applicable in Lutho’s case and it reads as follows:

If after the commencement of this Act a person (hereinafter referred to as the “deceased”) dies intestate, either wholly or in part, and is survived by a spouse as well as a descendant—
(i) such spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed from time to time by the Minister of Justice by notice in the Gazette, whichever is the greater; and
(ii) such descendant shall inherit the residue (if any) of the intestate estate.

This section of the ISA effectively says that Lutho’s wife inherits whichever is the greater of either a child’s portion (also called a child’s share) or an amount fixed from time to time by the Minister of Justice and Constitutional Development (the amount is presently R250,000). Lutho’s children will equally inherit what remains after that. I won’t bore you with details of how a “child’s share” is calculated.

There are a few things to note here:

The share inherited by Lutho’s wife is unaffected by any amount she may be entitled to in terms of matrimonial property laws. You did not mention the marriage regime under which Lutho and his wife were married, but I will assume they were married in community of property as that is the default marriage system in South Africa. This would mean that his wife will get half of the estate, and then the other half is Lutho’s share, which will devolve as I have mentioned above, i.e., the wife receives R250,000 or a child’s share, then the children share the rest.
When I talk about his children inheriting the residue, I am also including your son. Section 1(2) of the ISA, provides that ‘illegitimacy shall not affect the capacity of one blood relation to inherit the intestate estate of another blood relation’. In other words, irrespective of the circumstances under which a child is conceived, any child has the capacity to inherit intestate from both parents and their relations. In other words, your son is held in the same regard as Lutho’s children from his marriage. His rights are independent of your legal standing.

This brings me to you. Unfortunately, mistresses do not have an automatic right to inherit from their lover’s estate. I do not intend the term “mistress” to be derogatory in any manner. However, I have intentionally not used “life partner” because Lutho’s existing marriage denies you “life partner” status. No matter how long they have been separated, they are still considered married. Likewise, no matter how long you and he lived together, you are not legally recognised as married. You may have cohabited and shared a duty of support to each other as life partners do, but Lutho could not have a spouse (under the Marriage Act²) and a “life partner” simultaneously. However, had they been divorced and you and Lutho had been cohabiting and sharing a life, the definition of “spouse” in the ISA and that of “survivor” in the Maintenance Of Surviving Spouses Act (MSSA)³ could have then been extended to you as his life partner.

Women in your situation are often left with very few rights. In the ideal world, Lutho should have drafted a will in which he named you as a beneficiary. That would have left you in a much stronger position. That said, even with a will in place, his wife has certain rights under the Wills Act,⁴ which may allow her to challenge the will if she feels her inheritance share is unfairly diminished by gifts to you as the mistress, especially if they were married in community of property.

You mentioned that he cared for you after encouraging you to leave your job. Did he take out any life insurance policies where he named you as a beneficiary? If so, you would be entitled to the payout regardless of your lack of marriage or life partnership status. Also, if he bought you any assets during the relationship, such assets could be considered donations that cannot usually be taken back unless there are mitigating circumstances. It is worth noting that any gifts he may have given you do not indicate he supported you. As such, you could not use such gifts as evidence to back up your dependency claim.

Another avenue, unlikely as it may be, would be if you and he had a written maintenance agreement. If that were the case, you may be able to claim any outstanding maintenance payments from his estate. Also, if you can prove dependency (that you were dependent on him), you could claim from Lutho’s pension or retirement fund, should this be available.

Ultimately, courts look at such matters on a case-by-case basis, taking a holistic approach to assessing all the facts. So I greatly advise you to take the legal route. All the best.