Knowing your rights as a partner in a relationship where two people have lived together for a significant period of time as married couples would, without getting married legally is very important especially in the instance where one of the parties passes away.  Your rights regarding inheriting where no legal will is in place or in the instance where a maintenance claim can be instituted against the estate.

Current legislation and case law  should be taken into consideration when you and your legal representative determine your legal position, rights and how the situation will affect both parties’ loved ones or family.

The definition of a life partnership where parties live as a married couple, they have undertaken reciprocal duties of support towards each other was reviewed in a current court case for parties of the opposite-sex life partnership as well as heterosexual life partnerships.

In this case the constitutionality of both the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Souses Act 27 of 1990 were challenged to the extent that they exclude a surviving partner in an opposite-sex life partnership from inheriting or receiving maintenance from their deceased life partner’s estate.  The applicant in this matter was financially supported by her deceased life partner to who she was engaged to get married.  The applicant’s partner unfortunately passed away before the marriage could be concluded.

After considering all facts regarding this matter the court was satisfied that there was enough evidence that the parties were indeed in a life partnership.

The application requested the court to revise specific sections in the Maintenance of Surviving Spouses Act and the Intestate Succession Act which the applicant felt discriminated against her on the grounds of sexual orientation, marital status, gender, dignity and equality regarding her right to inherit from her deceased life partner.  Furthermore that the law that deals with parties of the same-sex life partnership and opposite-sex life partnership differently insofar as previous advances in law, make provision for parties in a same-sex life partnership to inherit from one another through the Intestate Succession Act even after the Civil Union Act was amended to allow same-sex partners to marry.

The court in this instance agreed with the arguments placed before it and held that parties in a life partnership should be afforded respect and legal protection.

The Maintenance of Surviving Spouses Act, the definition of “survivor” does not include a same-sex life partner.  This excludes and denies parties in such life partnerships to claim spousal maintenance.  The Constitutional Court held that the relevant provisions in both above referred pieces of legislation were invalid and discriminatory and further held that a partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support to be included wherever “spouse” is referred to in both acts.

Take note the judgement was suspended to provide Parliament with an opportunity to remedy the constitutional deficiencies of the abovementioned 2 pieces of legislation but is it evident that unmarried partners in a heterosexual life partnership who fits the definition as referred to above of life partner are now able to inherit from their partner’s estate.