The times are changing leading to more and more couples simply living together without ever getting married. This can be known as a life partnership – being a same-sex or opposite-sex relationship, it entails a couple living together in a partnership akin to a marriage in a “husband and wife” arrangement.
Simply put, opposite-sex life partners were never allowed to inherit intestate* from their partner according to section 1(1) of the Intestate Succession Act, but a spanner has been thrown in the works.
Same-sex partners however are allowed to inherit intestate, according to Gory v Kolver NO & Others (Starke & Others Intervening) 2007 (4) SA 97 (CC). In short, the above case simply allowed same-sex partners to inherit due to the fact that same-sex marriages were not recognised within the South African legislative framework at that time. The Intestate Succession Act was seen as unconstitutional and the definition of “surviving spouse” was amended to include the surviving same-sex life partner of the deceased.
In Bwanya v the Master & Others 2021 (1) SA 138 (WCC) it was recognised that the Intestate Succession Act made provision for the surviving spouse and surviving same-sex partner but did not extend the same benefit to surviving partners in opposite-sex life partnerships.
Many valuable arguments were made by The Women’s Legal Centre Trust in how the Intestate Succession Act affected vulnerable women in a disproportionate manner, leading to their right to equality being infringed.
* Intestate means when a person dies without having a valid will.
The Court came to the conclusion that there was no justifiable reason as to why opposite-sex partners could not inherit, in the same manner as any other spouse or partner in a same-sex life partnership.
The exclusion in the Intestate Succession Act amounts to unfair discrimination and the court further ordered that wherever the word “spouse” appears in the Act, the words “or partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support” should be read.
The outcome of the Bwanya-case is not only seen as a win for women, but as a step in the direction towards growth of the South African legal system.