The Status of Life-Partners in the Event of a Partner Dying Without Having Executed a Valid Will

When a person passes away having executed a valid Will, administering the estate is generally a straightforward process unless there are challenges raised concerning the validity of the Will itself. The Will would have prescribed who will inherit, when, and if there are any conditions attached to it. It is usually where the deceased left no valid Will that many disputes and battles between legitimate and illegitimate 'beneficiaries' occur.

Suppose a person dies without leaving a valid will. In that case, their estate will devolve according to the Intestate Succession Act, 1987 (Act 81 of 1987). According to a set formula, their estate will be divided amongst their surviving spouse, children, parents, or siblings.

While the rules of Intestate succession are often easier to apply where spouses were legally married, a lot of confusion arises where parties lived in a life partnership arrangement. Although same-sex and opposite-sex life partnership relationships have been accorded specific benefits in legislation (such as the Pension Funds Act, Maintenance Act, Rental Housing Act), a life partnership relationship does not accord full legal consequences of marriage.

At best, the Civil Union Act, 17 of 2006, is only a partial reform of rights accorded to life partnership relationships.

While opposite and same-sex life partners are free to nominate each other in their joint or individual Wills, the question that arises is what the position is when a partner dies without executing a valid will.  

In Laubscher NO v Duplan and Another 2017 (2) SA 264 (CC) the Court was tasked with determining the position.

In this case, the life partners had resided together since 2003. Still, they had not registered nor solemnised their union until the other partner died in 2014. Even though the relationship had not been solemnised nor registered, the Court's finding was grounded on the premise that reciprocal duties of support were indeed between the deceased and the Respondent. They had lived as permanent life partners intending it to be so.

The Court found that the surviving same-sex life partner was entitled to inherit as the "read in" definition of spouse in Section 1 (1) of the Intestate Succession Act 81 of 1987 applied to them.

In the case of Gory v Kolver NO (2006) ZACC 20, section 1(1) of the Intestate Succession Act was found to be unconstitutional as it discriminated against partners in a permanent same-sex partnership in which they have undertaken reciprocal duties of support.

The Court ruled that the extension of the definition of spouse to include permanent same-sex life partners will be retrospective from 1994 until the legislature amends the section and that it was not an interim measure.

On the other hand, the Court ruled in Bwanya v Master of the High Court Cape Town and Others ZAWCHC 111 that should it be evident and proven that opposite-sex life partners lived in a permanent life partnership arrangement (intending it to be so providing reciprocal duties of support) they will be regarded as spouses in terms of intestate succession. This decision is still to be confirmed by the Constitutional Court.

Despite the foregoing, executing a valid Will remains the most legally effective way to secure an inheritance for the benefit of heirs and ensure that the testator's wishes are given effect.

Where it is found that there existed reciprocal duties of support between same/opposite sex life partners and that they intended their union to be a permanent life partnership despite not having registered the union, the rules of intestate succession regard the surviving partner as a spouse in terms of the Intestate Succession Act.

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