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Sun Dec 04 22:25:03 SAST 2016

Concourt win for same-sex partners

Nomahlubi Jordaan | 2016-12-01 00:00:00.0

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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.

This is according to a Constitutional Court ruling handed down yesterday.

The case concerned the intestate succession rights of unmarried partners in a permanent same-sex partnership.

When someone dies and does not leave a valid will, the Intestate Succession Act applies. The Act divides a deceased's estate between relatives and spouses.

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 together since 2003 until Cornelius died last year.

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. The Civil Union Act had not been enacted at the time.

He argued that Laubscher was not Cornelius's spouse and not entitled to inherit from his intestate estate.

Laubscher, the applicant, however, contended only same-sex partners who had registered a civil union under the Civil Union Act qualified to inherit the intestate estate of a partner.

In a majority judgment, the Constitutional Court ruled that ". same-sex partners will continue to enjoy intestate succession rights under section 1 (1) of the [Intestate Succession Act], as per the Gory order until such time that the legislature specifically amends the section".

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