Why domicile matters for same-sex inheritance rights

In a world where love knows no borders, the law still does. For same-sex couples in South Africa, the journey toward equality has been marked by landmark victories from the legalisation of same-sex marriage to the recognition of life partnerships in inheritance law. But one critical factor continues to shape how estates are distributed: domicile.

Domicile isn’t just where you live, it’s where the law says you belong. And when it comes to inheritance, especially for couples with international ties, it can be the difference between a seamless estate transfer and a legal situation that is hard to resolve.

Understanding Domicile: Your Legal “Home Base”

Domicile is the country you consider your permanent home, the place you intend to return to, even if you’ve lived elsewhere. It’s influenced by where you live, work, pay taxes, own property, and maintain personal and professional ties. For same-sex couples, establishing domicile in South Africa is crucial to ensuring their inheritance rights are protected under local law.

Why domicile matters for same-sex couples

South Africa’s progressive legal framework, including the Civil Union Act (No. 17 of 2006) and the Intestate Succession Act (No. 81 of 1987), ensures that same-sex partners, whether married or in permanent life partnerships, have equal inheritance rights. But when a couple has lived abroad or holds assets in another country, foreign laws may apply, and not all jurisdictions recognise same-sex unions.

Historically, the principle of lex domicili matrimonii meant that the husband’s domicile determined the legal framework for inheritance. This outdated concept posed serious challenges for same-sex couples, especially in countries that didn’t acknowledge their relationships. Thankfully, South African courts have stepped in to correct these injustices.

Legal precedents that changed the game

• Laubscher N.O. v Duplan (2016): Affirmed that same-sex partners in permanent life partnerships can inherit, even without being married, if they can prove mutual support
• Gory v Kolver (2010): Found the exclusion of same-sex partners from inheritance rights unconstitutional.
• S v Minister of Home Affairs (2009): Confirmed that refusal to recognise same-sex marriages was discriminatory, with domicile playing a key role.
• M v M (2011): Established that South African courts had jurisdiction based on the couple’s domicile.

These cases underscore the importance of domicile in securing inheritance rights and the need for proactive estate planning.

How to prove domicile in South Africa

Same-sex couples can strengthen their legal standing by documenting their domicile through:

• A joint declaration of intent to reside permanently in South Africa
• A cohabitation agreement outlining mutual responsibilities
• A Will that includes a domicile clause
• A domicile certificate from the local authorities
• A court declaration confirming domicile

The bottom line: plan, protect your legacy

In a globalised world, many South Africans live, work, and invest across borders. But when it comes to inheritance, domicile remains a deeply local issue. For same-sex couples, ensuring that South African law governs their estate can safeguard their rights and honour their wishes.

Whether you're drafting a Will, entering a civil union, or planning your estate, understanding the impact of domicile is not just a legal necessity, it’s a powerful act of love and foresight.

* Kramer is the wills drafting manager at FNB.

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