Heterosexual life partners can now inherit from each other

Western Cape High Court File picture: Africa News Agency (ANA)

Reprinted from the Cape Times, by Chevon Booysen – 2020-10-01

Cape Town – Heterosexual life partners are now eligible to inherit from each other after the Western Cape High Court ruled that a section in the Intestate Succession Act (ISA) is unconstitutional and invalid.

The Legal Resources Centre (LRC) welcomed the judgment.

The LRC, which represented the Commission for Gender Equality as amicus curiae or friends of the court, said the judgment was a victory for life partners.

The applicant in the matter was in a permanent opposite-sex life partnership and her partner died without a will.

According to court papers, the applicant met the man during February 2014 while she had waited for a taxi in Camps Bay, where he had “swept her off her feet”.

The two were soon in a whirlwind romance and during June 2014, the deceased asked the applicant to move in with him at his Camps Bay property.

At the time of his passing, the couple were engaged to be married for nearly two years and had been living in a permanent stable relationship while preparing for marriage at a determinable future date, as soon as lobola negotiations between the deceased and the applicant’s family, who live in Zimbabwe, had been concluded.

Further, in court papers diary entries by the deceased were presented which showed the two had plans to start a business together and also had intentions of starting a family.

Court papers read: “The applicant avers that she and the deceased had a very traditional arrangement pertaining to the management of the household. He took care of all the expenses relating to (his two properties).

’’The deceased also bought all their groceries and other household necessities while she cooked and cleaned for him.

“The deceased acknowledged the applicant’s contribution of love, care, emotional support and companionship to their permanent domestic partnership.”

The man died on April 23, 2016, at age 57. He had a will but the heir appointed, his mother, died in 2013.

According to the ISA, and Maintenance of Surviving Spouses Act (MSSA), opposite-sex life partners could not inherit and/or claim maintenance respectively as they were not considered spouses in terms of these laws.

In a statement LRC said: “As a result the applicant filed an application challenging the constitutionality of both the ISA and the MSSA for failing to recognise and include heterosexual life partners who have undertaken reciprocal duties of support as spouses for the benefit of inheritance and maintenance respectively.

“The LRC welcomes the judgment in which the court declared that section 1(1) of the ISA is unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent heterosexual life partnership from inheritance,” the statement read.

In relation to the MSSA, the court held that the finding by the Constitutional Court in another judgment, was binding on the court as a lower court so it could not make a finding in favour of the applicant in this regard.

“We welcome also the declaration of invalidity in relation to the ISA as it is an important development of the South African jurisprudence on the rights of opposite-sex permanent life partnerships.

“Often women in such relationships are vulnerable and suffer discrimination when the relationship is terminated by death.

“The decision is a welcome development in advancing the rights of women to equality and dignity, specifically in relationships,” the LRC statement read.

Is your will up to date?

We welcome this judgment as a major advance for life partners who die intestate. However, whether you are married or not, the best way to ensure your wishes are carried out after your death is to make a will. We can help you draft or update your will. We can also draw up a universal partnership agreement, to protect your status as non-married life partners.

Simon Dippenaar and Associates is a specialist family attorney in Cape Town and will ensure your estate is distributed and your children are cared for exactly the way you would like after your death. Contact Simon now on 086 099 5146 or email him on info@sdlaw.co.za for a confidential discussion.

Further reading:

• Not married – when the inevitable happens
• Last will and testament
• Cohabitation Agreement (PDF)
• Cohabitation – What is it?

Simon Dippenaar

https://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

View more posts from this author