Series | Week 36
Title: When Love Isn’t Legally Recognised: What Happens When a Long-Term Partner Dies?
In many relationships today, couples choose to live together for years without formally getting married. They build homes together, raise children, share financial responsibilities, and present themselves to society as husband and wife. To friends, family, and the community, they are a couple in every sense of the word. But when one partner passes away, the reality of the law can come as a shock.
In Botswana, long-term cohabitation does not automatically give a surviving partner the same legal rights as a legally married spouse. This means that despite years of commitment and shared life, the surviving partner may find themselves with little or no legal protection when it comes to inheritance.
Does Living Together Create Legal Marriage?
Many people believe that if a couple lives together long enough, they automatically become “common-law spouses.” This belief is widespread but unfortunately incorrect under Botswana law.
Unlike some jurisdictions that recognise common-law marriages, Botswana generally requires a formal marriage, either under civil law or customary law, for spousal rights to arise automatically. Simply living together for ten years or even twenty years does not create the same legal status as marriage. As a result, when a partner dies without a will, the surviving partner in a long-term relationship may not automatically inherit from the deceased’s estate.
What Happens If There Is No Will?
When a person dies without leaving a valid will, their estate is distributed according to the rules of intestate succession. These rules determine who inherits from the estate and in what proportions. Typically, the law prioritises:
The legally recognised spouse
The children of the deceased
Other close blood relatives, such as parents or siblings
If the deceased was never legally married to their long-term partner, the surviving partner may not be recognised as a legal heir under these rules. This can lead to difficult situations where family members inherit property that the surviving partner may have helped acquire or maintain. In some cases, a partner may even face the possibility of losing the home they shared with the deceased if the property forms part of the estate and passes to the deceased’s relatives.
The Situation Where Children Are Involved
Where the couple has children together, the children will usually be recognised as heirs of the deceased parent. However, this does not automatically secure the financial position of the surviving partner. The surviving partner may remain responsible for caring for the children, but the assets of the estate may still legally belong to the children or other heirs, depending on the circumstances. This can create practical and financial difficulties, particularly if the estate includes property or assets that the surviving partner depends on for daily living.
Can a Long-Term Partner Make a Claim?
In certain situations, a surviving partner may attempt to prove that they were financially dependent on the deceased. Some institutions, such as pension funds, may consider dependency when distributing death benefits. For example, pension fund trustees often investigate the financial dependants of the deceased before distributing benefits. If a long-term partner can demonstrate financial dependence, the trustees may consider allocating a portion of the benefit to them.
However, this process is not guaranteed and can involve lengthy investigations or disputes with other potential beneficiaries.
Why a Will Is So Important
For couples in long-term partnerships, having a valid will is one of the most important steps in protecting each other. A will allows a person to clearly state who should inherit their assets. This means that even if the law does not automatically recognise the partner as a spouse, the deceased can still choose to leave property, money, or other assets to that partner.
Without a will, the surviving partner may have very limited rights. Estate planning can also ensure that practical issues are addressed, such as:
Who will remain in the family home
How children will be supported
How property should be divided
Planning Ahead to Avoid Disputes
Unfortunately, disputes involving long-term partners and family members are not uncommon when someone passes away without proper estate planning. These disputes can delay the administration of the estate and place emotional strain on everyone involved. Taking proactive steps can help avoid these conflicts. These steps may include:
Drafting a valid will
Updating beneficiary nominations on pensions and insurance policies
Ensuring property ownership is clearly structured
Seeking professional legal advice when entering long-term partnerships
Planning ahead ensures that the people who were truly part of your life are properly protected.
Final Thoughts
Long-term partnerships are a reality of modern life, and many couples build meaningful and committed lives together without formal marriage. However, the law does not always reflect the emotional and practical realities of these relationships. Without proper estate planning, a surviving partner may find themselves without the protection they expected. Taking the time to prepare a will and review beneficiary nominations can make all the difference. It ensures that your wishes are respected and that the person who shared your life is not left vulnerable after you are gone.
This article is provided for general information purposes and does not constitute legal advice. Next week, we continue our estate planning series by looking at “Cohabitation Agreements: Setting Rules for Property & Debt A cohabitation agreement (or “common-law contract”) that defines how property is owned, how debts are managed, and explicitly states how assets will be divided if the relationship ends or one partner dies.”
