Call us now:
The Constitutional Court is currently faced with making an interesting decision on the law relating to intestate succession as applied to same-sex couples who are not in a valid civil union.
When a person dies without leaving a valid will, his estate devolves in terms of the laws of intestate succession, as contained in the Intestate Succession Act. This is one of the reasons why it is so crucial to make a will – otherwise default provisions apply which may result in unintended consequences. In the past, because same-sex couples were not legally permitted to marry, case law evolved to such an extent that, where a person in such a partnership died without leaving a will, the courts decided that the remaining partner could be seen as the deceased’s spouse for purposes of intestate succession – meaning that he or she could inherit from their partner and possibly rank above the deceased’s blood relatives.
When same-sex marriages became legal in terms of the Civil Union Act, the rationale for making this exception for same-sex couples may have become moot. If the law allows same-sex couples to get married, should they still enjoy this extra protection, which heterosexual couples do not?
This is the tricky question that the Constitutional Court is faced with deciding in the matter of Laubscher N.O v Duplan and Another. In this case the deceased was in a same-sex partnership with the First Respondent but they never entered into a civil union and thus were not legally married – even though this option was legally available to them. So the question really becomes whether the additional protection that was previously granted in such situations due to a lack of choice can now still be applicable when a party chooses not to make use of legal protections available to them, or perhaps simply fails to make a choice at all.