ConCourt rules surviving permanent same-sex partner may inherit from deceased partner

When a partner in a same-sex permanent partnership dies‚ the surviving one‚ even though they are not legally married‚ inherits the deceased’s intestate estate‚ the Constitutional Court ruled on Wednesday.

The case before the Constitutional Court concerned the intestate succession rights of unmarried partners in a permanent same-sex partnership in which the partners have undertaken reciprocal duties of support.

When someone dies and does not leave a valid will‚ the Intestate Succession Act applies. The Act divides a deceased’s estate between family members and spouses and only applies when there is no valid will.

The Constitutional Court had to determine whether Rasmus Laubscher‚ the applicant in the matter and brother of the deceased‚ Cornelius Laubscher‚ or Eric Duplan‚ Cornelius’s partner with whom he lived in a permanent same-sex partnership‚ is entitled to inherit from the intestate estate of the deceased.

Cornelius was in a permanent same-sex life partnership with Duplan and they supported each other during that time. They had lived with each other since 2003 until Cornelius died in 2015.

At the time of his death‚ the partnership had not been formalised as a civil union and Cornelius did not leave a will.

In his argument‚ Duplan‚ who was the respondent in the matter‚ relied on a similar case (Gory v Kolver) in which the Constitutional Court had found that the definition of the word ‘spouse’ included same-sex life partnerships‚ even if this partnership was not formalised by marriage. The Civil Union Act had not been enacted at the time.

He further argued that Laubscher is not Cornelius’s spouse and therefore not entitled to inherit from his intestate estate.

Laubscher‚ the applicant‚ however‚ contended that only same-sex partners who have solemnised and registered a civil union under the Civil Union Act (CUA)‚ qualify to inherit the intestate estate of a partner.

The High Court‚ when the matter was referred to it‚ granted an order declaring Duplan the sole intestate heir of Cornelius’s estate‚ despite the fact that they were never married.

In a majority judgment‚ the Constitutional Court ruled that “….same sex partners will continue to enjoy intestate succession rights under Section 1 (1) of ISA (Intestate Succession Act)‚ as per the Gory order until such time that the Legislature specifically amends the section”.

– TMG Digital

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