This article originally appeared on GroundUp.

Does your partner inherit your estate if you’re not married? The Constitutional Court has given us the answer: it depends on your sexual orientation.

Last week the Court handed down its decision in the case of Laubser v Duplan: the partner in a same sex couple can inherit if the deceased partner did not leave a will (intestate), even if not married. Heterosexual life partners, however, cannot inherit from an intestate partner unless they were married.

The case involved a gay couple, Cornelius Laubser and Eric Duplan, who lived together but never married. Laubser died without having drawn up a will. In the High Court, Duplan was treated as a spouse under the Intestate Succession Act and entitled to inherit. However, Laubser’s brother, Rasmus Laubser, appealed the decision.

The question to be decided by the Constitutional Court was whether the extended definition of the word “spouse”, which included unmarried same sex couples, should be changed.

In a previous case, Gory v Kolver, the Constitutional Court had extended the definition of spouse to include all same sex partners (irrespective of marital status) because, at the time the case was decided, the Intestate Succession Act did not allow for unmarried same sex couples to inherit. This decision allowed same sex couples to be recognised for purposes of succession, even though they could not solemnise their relationship through marriage.

However, since then the Civil Union Act has come into force, allowing same sex couples to marry. Laubser argued that this meant that same sex couples now had to solemnise their relationship in order to inherit intestate, just as heterosexual couples had to do under the Marriage Act. He also argued that the decision in the Gory case was an interim measure, intended to apply only until Parliament passed legislation allowing same sex couples to marry.

The underlying justification for these arguments hinged on another Constitutional Court case, Volks v Robinson, in which the Court held that heterosexual partners could not inherit unless they solemnised their relationship in marriage.

The Civil Union Act, coupled with the Gory decision, meant that the marital status of same sex couples was irrelevant to inheritance while heterosexual couples did need to be married in order to inherit. In essence, Laubser argued, same sex couples were given greater protection than heterosexual couples.

In the Constitutional Court decision, the majority of judges held that the extended definition of spouse in the Intestate Succession Act was not an interim measure and would remain in force until such time as Parliament chose to amend the Act.

The majority recognised the inequality that now exists between unmarried same sex couples and unmarried heterosexual couples, but decided that the decision on how this inequality should be rectified was best left to Parliament. Rectifying the inequality could take the form either of removing the protection for unmarried same sex couples or of extending the protection to unmarried heterosexual couples, a decision which the court could not make. The majority also noted that some same sex couples might have decided not to marry because of the protections afforded by Gory.

The majority of judges decided not to consider the Volks case, in part because that case involved a duty of maintenance rather than a right to inherit, and so did not directly deal with the issues raised in this case.  As regards the supposed inequality between heterosexual and same sex partners, the judges found that this was irrelevant to the issue before the court.

Since there has never been a challenge to the exclusion of unmarried heterosexual partners from the Intestate Succession Act, the court has not yet been a position to decide the issue.

Justice Froneman wrote a minority judgment which differs from the decision of the majority in two respects. Froneman argues that the Gory decision provided a right of inheritance for same sex couples who were not legally able to get married, rather than for all same sex couples, as held by the majority. As a consequence, the introduction of the Civil Union Act meant that same sex couples who were able to get married but chose not to, ought to be excluded from inheriting, as is the case for heterosexual couples.

The second point on which Froneman differed was the Volks decision. Froneman argued that the Court should take into account the Volks case and the constitutional right to not be discriminated against on the basis of marital status. The decision in Volks was made in a context which was – as Froneman termed it – ‘marriage-centric’ and failed to recognise and include unsolemnised life partnerships. As a consequence, the court ought to move away from the decision in Volks and include both unmarried same sex and unmarried heterosexual couples, he argued.

It will now be interesting to see what Parliament does to rectify the discrepancies between the rights of same sex and heterosexual couples in the case of a partner dying intestate.