confusion over same sex inheritance

By Musa Ngubane (BtM Reporter)

August 28, 2006: Even though cabinet has given a nod to the bill allowing same sex marriage, many same gender loving people are still fighting for their rights in the South African courts.

Judgment was reserved on August 24 at the constitutional court, in a case filed by Mark Gory who has for a long time been battling with bureaucracy since his same sex partner Henry Brooks died without a will in 2005. After the Brooks death Gory failed to inherit his partner’s estate because the Intestate succession Act 81 of 1987 in so far does not provide for a permanent same sex life partner to inherit automatically as a spouse would.

Gory and Brooks’ relationship started in 2003. Having bought a house in 2004, they moved in together where they subsequently exchanged informal vows and wedding bands at a celebration attended by Brooks’ parents. Even though most of the couples’ joint positions were in Brooks’ name, they shared all expenses. After Brooks’ death, his family demanded the estate and eventually forced Gory out of the house that he and Brooks bought together.

After the High court declared, earlier this year, that the Intestate Succession Act was unconstitutional as it failed to acknowledge same sex unions with reciprocal duties of support, Gory took the matter further to the constitutional court.

Gory ordered the Constitution court to adopt a assertion by the High court which declared that the Intestate Succession Act should include the words ‘or partner in a permanent same sex relationship’ to be read after the words ‘or spouse’.

On the other hand there is still confusion in the country over who the rightful heir to the estate of the deceased who was involved in a same sex relationship is. This is confirmed by Elrida Starke’s case where four sisters are in dispute with the partner of their deceased brother over who is the rightful heir to his estate. These women argue that should the High Court order (allowing partners in the same sex relationships to inherit their deceased partners’estate) be confirmed, they will suffer prejudice of being deprived their vested rights as intestate heirs.