Introduction: The Evolution of Inheritance Rights for Cohabiting Partners
In South Africa, the legal rights
of life partners—both same-sex and opposite-sex—to inherit from a deceased
partner or claim maintenance from their estate have undergone significant
changes. Historically, cohabiting partners who were not married were excluded
from inheriting under the Intestate Succession Act 81 of 1987 and from claiming
maintenance under the Maintenance of Surviving Spouses Act. This legal
exclusion, particularly affecting same-sex couples, prompted court
interventions to address discriminatory provisions in the law. The
Constitutional Court’s decisions in Gory v Kolver and Bwanya v Master
of the High Court played pivotal roles in shaping inheritance and
maintenance rights for life partners, leading to amendments in the law through
the Judicial Matters Amendment Act 15 of 2023.
The Legal History of
Inheritance Rights for Same-Sex Partners
Gory v Kolver and its
Impact on Same-Sex Life Partnerships
In the groundbreaking case of Gory
v Kolver, the Constitutional Court addressed the rights of same-sex life
partners to inherit under the Intestate Succession Act. This case revolved
around Mark Gory, who sought to inherit the estate of his same-sex partner,
Henry Harrison Brooks, who had died without a will in 2005. At the time, the
law recognized only legal spouses as heirs under intestate succession,
excluding same-sex life partners.
Gory and Brooks were in a
permanent relationship and had even participated in a symbolic ceremony
resembling a wedding to express their commitment to each other. Since same-sex
couples could not legally marry before the enactment of the Civil Union Act in
2006, they were denied inheritance rights under the existing legal framework.
The court ruled that this exclusion amounted to unfair discrimination on the
basis of sexual orientation, violating section 9 of the South African
Constitution, which guarantees equality.
To rectify this, the court read
into the Intestate Succession Act the phrase “or partner in a permanent
same-sex life partnership in which the partners have undertaken reciprocal
duties of support” after the word “spouse.” This legal adjustment ensured that
same-sex life partners could inherit from each other’s estates if they could
prove a reciprocal duty of support during their relationship.
Although the Civil Union Act came
into effect shortly after the Gory decision, the case remains
significant as it established a legal precedent recognizing the rights of
same-sex life partners to inherit under intestate succession, even in the
absence of legal marriage.
The Legal Struggle for
Opposite-Sex Life Partners
The Bwanya v Master of the
High Court Case: Extending Rights to Opposite-Sex Life Partners
While same-sex life partners
gained legal protections through Gory v Kolver, the legal status of
opposite-sex life partners remained uncertain until the Bwanya case. In
this case, the applicant, Ms. Bwanya, sought to inherit from her deceased
opposite-sex partner, Mr. Ruch, who had passed away without a valid will,
leaving his estate intestate. Bwanya and Ruch were in a committed life
partnership where they had supported each other both financially and
emotionally, and plans for traditional marriage negotiations had already been
set in motion before his unexpected death.
The Western Cape High Court
initially dismissed her claim, ruling that she could not be considered Ruch’s
spouse because the legal definition of “spouse” under the Intestate Succession
Act and the Maintenance of Surviving Spouses Act applied only to legally
married individuals. Dissatisfied, Ms. Bwanya appealed to the Constitutional
Court, arguing that the exclusion of opposite-sex life partners from these Acts
was unconstitutional and discriminatory.
The Constitutional Court agreed,
ruling that the failure to recognize the rights of opposite-sex life partners
in permanent, supportive relationships was discriminatory and unconstitutional.
The court ordered that the laws be amended to allow surviving opposite-sex life
partners to inherit and claim maintenance, provided they could demonstrate a
reciprocal duty of support within the relationship.
Legislative Changes Following
the Bwanya Case
The Constitutional Court’s
decision in Bwanya prompted significant legislative changes. Following
the court’s ruling, the Judicial Matters Amendment Act 15 of 2023 was passed,
and it came into effect on April 3, 2024. This Act amended both the Intestate
Succession Act and the Maintenance of Surviving Spouses Act to include
surviving partners from both same-sex and opposite-sex life partnerships. The
updated law now recognizes partners in permanent life partnerships where
reciprocal duties of support existed, allowing them to inherit and claim maintenance
after a partner’s death.
The changes brought by this Act
represent a crucial step toward equality for cohabiting partners in South
Africa, ensuring that both same-sex and opposite-sex partners are treated
similarly when it comes to matters of inheritance and maintenance after death.
Conclusion: The Current Legal
Landscape for Cohabiting Partners
With the introduction of the
Judicial Matters Amendment Act 15 of 2023, both same-sex and opposite-sex life
partners in South Africa now have the right to inherit from their deceased
partner’s estate and claim maintenance, provided that they can prove the
existence of a reciprocal duty of support. This development addresses the
historical discrimination faced by both groups and brings South African law
closer to fulfilling the constitutional principle of equality.
Recommendations: Steps for
Cohabiting Partners to Secure Their Rights
While these legal changes mark a
significant advancement in the rights of cohabiting partners, it is strongly
recommended that partners in permanent life partnerships take additional steps
to safeguard their rights. These include:
- Drafting a Valid Will: Both partners should
ensure that they have a will clearly outlining their intentions for the
distribution of their estate.
- Formalizing the Relationship with a Partnership
Agreement: A partnership agreement detailing the structure of the relationship,
and the reciprocal support provided can help avoid disputes in the event
of a partner’s death.
By taking these steps, partners
can prevent legal challenges and ensure that their wishes are respected.
