Inheritance of surviving opposite sex life partners

The Constitutional Court in the aforesaid case decided that the exclusion of opposite-sex life partners from inheriting under the Intestate Succession Act and claiming maintenance under the Maintenance of Surviving Spouses Act was against the law and the position needed to be rectified.

The facts of the case are as follows:

The applicant, Ms. Bwanya, was in a committed relationship with the deceased, Mr. Ruch. They were in an intimate relationship with mutual financial and emotional support, love, and care. The applicant and the deceased were about to commence lobola (marital) negotiations when the deceased passed away suddenly. The deceased had a valid will in which he appointed his mother as the sole beneficiary of his estate, but she died before him and therefore, in the eyes of the law, he was regarded as having died intestate, meaning he died without a valid will.

Ms. Bwanya then lodged an application at the Western Cape High Court on two grounds:

1. She was entitled to inheritance in terms of the Intestate Succession Act; and
2. She was entitled to maintenance in terms of the Maintenance of Surviving Spouses Act.

The premise of her claims was that the deceased was her life partner, they were engaged to be married, they both provided each other with support, and the nature of their relationship was like that of a marriage, and therefore she should be entitled to inherit from the deceased’s estate. Unfortunately, her claims were rejected because she was not legally married to the deceased and the aforementioned acts only provided benefits and protection to spouses in a legally recognised marriage. Consequently, the applicant challenged the validity and constitutionality of the definition and interpretation of the word “spouse” in the Intestate Succession Act and the Maintenance of Surviving Spouses Act.

The previous legal position as found in Gory v Kolver and Laubscher v Duplan, was that only same-sex life partners were entitled to inherit in terms of the Intestate Succession Act, if it was concluded that the same-sex partners had “a reciprocal duty of support” during their relationship. The High Court agreed that Section 1(1) of The Intestate Succession Act was invalid and unconstitutional but rejected the argument for the invalidity of Section 1 of the Maintenance of Surviving Spouses Act.

The applicant took the matter even further, and before the Constitutional Court she stated that the definition of “spouse” in section 1(1) of the Intestate Succession Act unfairly discriminated against her and other vulnerable opposite-sex life partners on the grounds of gender, marital status, and sexual orientation. Another contentious issue is that the former position unfairly favoured same-sex partners and afforded them greater rights than those afforded to opposite-sex life partners.

As there are different forms of family structures and family dynamics, each deserving of respect and dignity, the Courts upheld the finding that Section 1(1) of the Intestate Succession Act is unconstitutional and ordered that the interpretation of the word “spouse” in section 1 of the Maintenance of Surviving Spouses Act be amended to read as follows, “and includes the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate”.

Although the judgment in Bwanya v The Master of the High Court is groundbreaking, we still require legislation which regulates life partnerships and the distribution of estate assets and property. Thus, an interim solution would be to always have an (updated) valid will and to consider a cohabitation agreement which regulates the financial aspects of a permanent lifelong partnership during and after the subsistence of the life partnership.

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Written by Ayanda Malotana

Moderated and approved by Wessel de Kock