Permanent Same-Sex Partnerships & Deceased Estates

Deceased estates in South Africa are governed by legislation.

If a deceased passes away with having executed a will, his estate will be governed by the Wills Act, Act 7 of 1953 (“the Wills Act”) and the Administration of Estates Act, Act 66 of 1965 (“Administration of Estates Act”).

The Wills Act provides for the formalities required in the execution of a will; the interpretation of wills; the validity of certain wills; and the competency of persons involved in the execution of wills.

South African law allows a deceased to leave any of his assets to any heir or beneficiary. However, the will must comply with the formalities set out in the Wills Act (See section 2 of the Wills Act).

If it has been established by the Master of the High Court that a will executed by the deceased does not comply with the formalities of the Wills Act, the Master will reject the will executed by the deceased.

If a deceased passes away without a will or if the Master of the High Court has rejected a will, the deceased estate will be governed by the Intestate Succession Act, Act 81 of 1987 (“Intestate Succession Act”) and the Administration of Estates Act.

Up until the case of Mark Gory v Daniel Gerhardus Kolver N.O and Others (Erilda Starke and Others Intervening) Constitutional Case no CCT 28/06 (“the Gory case”) which was decided on 23 November 2006, the Intestate Succession Act did not extend to permanent same-sex partnerships.

In the Gory case, the Constitutional Court upheld the Pretoria High Court’s finding that Section 1(1) of the Intestate Succession Act is unconstitutional and held that after the word “spouse” where ever it appears, the words “or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support” must be read in.

This means for a permanent same-sex life partner to inherit from a deceased estate, in which there is no will or the will has been rejected by the Master of the High Court, the permanent same-sex life partner needs to show the Master of the High Court that the relationship is intended to be permanent and that there was a reciprocal duty of support. To determine reciprocal duty of support, the Master of the High Court or the court must take into account the length of the relationship; the exclusive nature of the relationship; the existence of shared family responsibility; the extent to which the partners are acknowledged by friends and family as life partners; and the mutual provision made for the surviving partner after the death of the other. However, this list is not exhaustive and any one factor is not decisive of the issue.

However, on 30 November 2006, the Civil Union Act, Act 17 of 2006 (“Civil Union Act”) came into being. This means that partners in permanent same-sex partnerships now have the option of solemnising their civil union in terms of the Civil Union Act. Therefore, a same-sex couple who solemnised their marriage after 30 November 2006 would automatically be considered as a spouse in terms of the Intestate Succession Act.

It appears that the Master of the High Court has taken the view that if a same-sex life partner died before 1 December 2006, the other permanent same-sex partner would be considered as a spouse in terms of the Intestate Succession Act. If the same-sex life partner died on or after 1 December 2006 and did not solemnise their union in terms of the Civil Union Act, then the other same-sex partner would not be considered as spouse in terms of the Intestate Succession Act.

It is important whether you are in a heterosexual or permanent same-sex life partnership that you seek the assistance of an attorney who is able to draft a Will to suit your specific requirements; that your wishes are carried out after your death; and that your estate is distributed as per your will.

Please contact us for any further queries in relation to the drafting of Wills; Antenuptial contracts; Permanent Life Partnership Agreements and Cohabitation Agreements.