2. INTESTATE RIGHTS OF PERMANENT UNFORMALIZED LIFE PARTNERS (SAME-SEX AND OPPOSITE-SEX) UNDER SECTION 1(1)

Map of Problem-Solving Steps for Succession Law, Intestate Rights of Permanent Life Partners

• Factual Trigger: 

• Step 1: Identification of the Legal Issue

• Step 2: Scope, Applicable Law, and Factual Context

• Step 3: Definition and Nature of a Permanent Life Partnership

• Step 4: The Constitutional Remedy of Reading-In under Section 172(1)(b)

• Step 5: Extension to Same-Sex Partnerships (Gory v Kolver 2007)

• Step 6: Survival of Protection Post-Civil Union Act (Laubscher v Duplan 2017)

• Step 7: Extension to Opposite-Sex Life Partners (Bwanya v Master 2022)

• Step 8: Factual Requirements for Establishing Reciprocal Duties of Support

• Step 9: Estate Outcomes under Section 1(1)(a)

Factual Trigger for Intestate Rights of Permanent Life Partners Question

An individual dies intestate, leaving behind an unmarried, cohabiting life partner with whom they lived in a permanent relationship of mutual financial and emotional support without ever formalizing a legal marriage.

Step 1: Identification of the Legal Issue

The legal issue here is whether an unmarried surviving partner in a permanent heterosexual life partnership where reciprocal duties of support were undertaken is legally entitled to inherit as a 'spouse' under Section 1(1) of the Intestate Succession Act 81 of 1987.

Step 2: Scope, Applicable Law, and Factual Context

As such, This matter concerns/ requires the constitutional extension of intestate spousal rights to permanent life partners under Section 1(1)(a) because a deceased individual died intestate leaving behind an unmarried, cohabiting opposite-sex partner with whom they shared a permanent relationship of mutual financial and emotional support.

Step 3: Definition and Nature of a Permanent Life Partnership

Under traditional common law, 'spouse' was restricted to partners in a formal civil marriage under the Marriage Act 25 of 1961.

A permanent life partnership is an unformalized, committed relationship where partners cohabit and undertake reciprocal duties of support, creating factual and legal interdependency without registering a formal marriage.

Step 4: The Constitutional Remedy of Reading-In under Section 172(1)(b)

Where a statute unconstitutionally excludes deserving categories of families, courts apply the remedy of reading-in under Section 172(1)(b) of the Constitution.

Reading-in inserts essential words into an under-inclusive statutory provision to cure an unconstitutional omission, ensuring alignment with Section 9 (Equality) and Section 10 (Human Dignity).

Step 5: Extension to Same-Sex Partnerships (Gory v Kolver 2007)

In Gory v Kolver 2007, the Constitutional Court held that Section 1(1) of the Intestate Succession Act 81 of 1987 unconstitutionally excluded same-sex life partners who had undertaken reciprocal duties of support, ordering a reading-in to include permanent same-sex partners.

Step 6: Survival of Protection Post-Civil Union Act (Laubscher v Duplan 2017)

In Laubscher v Duplan 2017, the Constitutional Court confirmed that the protection granted in Gory survived the enactment of the Civil Union Act 17 of 2006, holding that an unformalized same-sex partner in a permanent relationship with reciprocal duties of support remains entitled to inherit without formalizing a civil union.

Step 7: Extension to Opposite-Sex Life Partners (Bwanya v Master 2022)

In Bwanya v Master of the High Court 2022, Madlanga J held that Section 1(1) of the Intestate Succession Act 81 of 1987 unconstitutionally discriminated against surviving partners in permanent opposite-sex life partnerships, ordering that Section 1(1) be read as including an opposite-sex permanent life partner in a relationship where reciprocal duties of support were undertaken.

Step 8: Factual Requirements for Establishing Reciprocal Duties of Support

To qualify as a spouse under Bwanya v Master 2022, the surviving partner must prove a permanent life partnership with reciprocal duties of support.

Factual indicators include a shared household, joint bank accounts, mutual financial contributions, and public reputation as life partners.

Step 9: Estate Outcomes under Section 1(1)(a)

Once reciprocal duties of support are established, the surviving partner qualifies legally as a 'spouse' under Section 1(1)(a) of the Intestate Succession Act 81 of 1987.

Where the deceased leaves no lineal descendants, the surviving partner inherits 100% of the net intestate estate.