Estate Planning for Same-Sex Couples in South Africa: What You Need to Know in 2025
Estate planning isn’t only for the wealthy or the elderly—it’s about protecting your partner, your family, and the future you’ve worked hard to build. For same-sex couples in South Africa, estate planning is especially important, as the law treats married and unmarried partners very differently.
Here are the key considerations every same-sex couple should know in 2025:
1. Marriage vs. Unmarried Partnerships
South Africa has recognised same-sex marriage since 2006, and legally married same-sex spouses have the same inheritance rights as opposite-sex couples under the Intestate Succession Act. This means that if one spouse passes away without a will, the surviving spouse will inherit in terms of the Act.
However, if you are not married, your partner has no automatic right to inherit. Without a valid will, your assets could pass to blood relatives instead of your partner. For unmarried couples, having a properly drafted will is non-negotiable.
2. Using Trusts for Flexibility and Protection
Whether married or not, trusts are a powerful tool for protecting assets and providing for your partner or children. A family trust can:
- Ensure continuity if you become incapacitated,
- Protect assets from creditors, and
- Provide for your partner or children according to your wishes.
Trusts also allow you to bypass the delays and costs of the Master’s Office in winding up certain assets.
3. Children and Guardianship
The Children’s Act governs parental rights and responsibilities. If children are born into or adopted by a same-sex family, it’s vital to ensure that both parents’ rights are legally secured. For biological children, the non-biological parent may need to adopt to be recognised as a legal parent.
Guardianship appointments in a will are also essential. Without this, the court decides who will care for your children if something happens to you—potentially against your wishes.
4. Wills: The Foundation of Every Plan
A valid will is the cornerstone of estate planning. It allows you to:
- Decide exactly how your assets are distributed,
- Provide for your partner (especially if you’re unmarried),
- Appoint guardians for minor children, and
- Prevent family disputes.
Without a will, your estate is wound up according to the default rules of intestacy, which may leave your partner unprotected.
5. Powers of Attorney and Incapacity
In South Africa, a general or special power of attorney lapses if you lose mental capacity. Unlike in some other countries, we don’t have “durable powers of attorney.” To plan for this risk, consider setting up a trust or exploring other legal arrangements to ensure your partner can manage your affairs if you cannot.
6. Healthcare Directives
A living will or advance healthcare directive allows you to record your medical wishes in case you’re unable to communicate them. While not yet governed by legislation, these documents are generally respected by healthcare providers in South Africa and can give your partner clear authority when making medical decisions.
Final Thought
Same-sex couples in South Africa enjoy full marital recognition, but the law does not automatically protect unmarried partners. Estate planning is the best way to ensure your wishes are respected—whether it’s providing for your partner, securing your children’s future, or protecting your assets.
At Benaters, we believe estate planning is not just about documents; it’s about peace of mind. By planning today, you take control of tomorrow.
Take the Next Step with Benaters
Don’t leave your future to chance. Whether you’re married or unmarried, our experienced attorneys can help you craft a tailored estate plan that protects your partner, your family, and your legacy.