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Article contributed by Umhlanga Attorney, Fawzia Khan

In South Africa we had the unique situation where same sex couples were allowed to inherit from each other’s estate if one of the partner’s died intestate that is without leaving a will, but this right was not available to heterosexual couples who were not married to each other. A case that went before the Western Cape High Court in September 2020 dealt with the right of a person to inherit from her deceased partner’s intestate estate and to claim spousal maintenance from the estate of the deceased.

In this case R, a German citizen died suddenly in 2016 without leaving a will. At the time of his death he was in a committed relationship with M. R’s executor refused to accept M’s claim to inherit saying there was no legal basis to allow for such a claim. The court heard that when R met M who was his domestic worker, they fell in love and planned to get married. She told the court they met in 2014 and that R had swept her off her feet and treated her like a princess until the day he died.

She said she mostly spent her days at his Camps Bay home, when she did not work at the family with whom she was employed. Four months after they met he told her he loved her and was prepared to travel to Zimbabwe to pay lobolo to her family. The court heard evidence that R introduced M to people within his social circle as his wife and they planned on starting a family. They also planned on starting a domestic cleaning business together and he wrote in his diary that he was in the process of buying her a car, with the number plate “GI Jane”. She said he paid for everything and that there was thus a contractual duty on him to support her, which continued when he had died. When R’s executor refused to accept her claim, she brought an application to declare that certain provisions of the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouse Act 27 of 1990 to be unconstitutional saying that her claims for a share of the estate of the late and / or maintenance from his estate were currently not recognised nor provided for under these Acts.

At the time of his death, R’s estate was worth millions. M told the court that the deceased took care of all of the expenses relating to the immovable properties and that he also bought all their groceries and other household necessities while she cooked and cleaned for them. She stated that the deceased did not expect her to contribute financially to their shared household expenses as he knew that her financial circumstances were dire and that she sent money to her daughter in Zimbabwe. The deceased acknowledged M’s contribution of love, care, emotional support and companion ship to their permanent domestic partnership. The Commission for Gender Equality who supported M in her application said that to deny M her claim would be unconstitutional, primarily on the basis that it unfairly discriminates on the basis of sexual orientation, but also on the basis of marital status, sex and gender. M said the Intestate Succession Act that precluded her from inheriting was outdated. The court found that it was as important that cohabitants of life-long heterosexual partnerships be protected and granted the order that M could inherit and claim spousal maintenance from R’s estate.

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