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Intestate succession & same-sex life partnerships

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The application of intestate succession to same-sex life partnerships - Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (4) SA 97 (CC)

Are partners in a permanent same-sex life partnership regarded as “spouses” for intestate succession purposes?

In the case of Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (4) SA 97 (CC), the Constitutional Court ruled that partners in a permanent same-sex life partnership should be regarded as “spouses” for intestate succession purposes. 

The subsequent enactment of the Civil Union Act 17 of 2006 has however limited the application of this decision as same-sex couples who enter into a marriage or civil partnership in terms of the Civil Union Act now enjoy the rights of spouses in a civil marriage in terms of the Marriage Act 25 of 1961. In particular, the Civil Union Act allows for both heterosexual and same-sex couples to enter into a “civil partnership” or “marriage”, provided certain formalities are met.

In the Gory case the applicant, Mark Gory, and the late Henry Harrison Brooks (the deceased) were at the time of the latter’s death partners in a permanent same-sex life partnership in which they had undertaken reciprocal duties of support.  Mr Brooks died intestate on 30 April 2005, and his parents, the 2nd and 3rd Respondents were nominated by Mr Daniel Kolver, 1st Respondent, to be appointed by the Master as the executor of their son’s estate. They claimed to be the deceased’s intestate heirs and entitled to his estate.

Mr Gory also claimed to be the deceased’s sole intestate heir. This resulted in Mr Gory launching motion proceedings in the Pretoria High Court in 2005.  The Court looked at Section 1(1) of the Intestate Succession Act 81 of 1987. The Court found that this sub-section was unconstitutional and invalid, as it did not include partners in a permanent same-sex life partnership in which the partners have undertaken duties of reciprocal support. The Court found that these parties should also be regarded as “spouses” for purposes of intestate succession

The Court found that the applicant and the late Henry Brooks were at the time of the death of Mr Brooks, partners in a permanent same-sex life partnership in which they had undertaken reciprocal duties of support. The applicant was declared to be the sole intestate heir of the late Henry Brooks, and the 1st Respondent was removed from his office as executor of the estate of the late Henry Brooks.

This is a very interesting decision as it shows how the Constitution has affected all aspects of our law, including intestate succession and same-sex life partnerships.


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