In April 2024, the Kingdom of Lesotho did something remarkable.
With a single statute, the Administration of Estates and Inheritance Act, 2024, it swept away centuries of male primogeniture, abolished the Laws of Lerotholi’s rule that only the eldest male heir could inherit the family house, and declared that every child, boy or girl, born inside or outside marriage, would share equally in a deceased parent’s estate.
The civil society in general, and women’s rights organisations, in particular, celebrated quite rightly. For the first time in the country’s history, daughters became visible heirs in the eyes of the law.
Despite its progressive thrust, the Act preserves a crucial element of traditional inheritance norms as only legally married partners receive automatic protection when a spouse dies without a will.
The Act does not define “spouse” explicitly but ties it to valid marriages under Lesotho’s Marriage Act, 1974 (civil) or customary law, both of which recognise only opposite-sex unions.
There are no provisions extending intestate rights to non-marital partners, cohabitants, or de facto relationships. The Act does not address same-sex relationships at all, nor does it recognise them as qualifying for intestate inheritance.
Section 66 establishes a structured system in which the surviving spouse and descendants inherit first, according to detailed rules that allocate shares depending on the marital property regime.
If there is no spouse and no descendants, the estate passes upward to parents and then sideways to other blood relatives through representation. Only in the absence of any surviving relatives does the State ultimately acquire the estate.
Because the Marriage Act of 1974 still defines marriage as a union between one man and one woman, a same-sex partner – and other couples barred from marrying, such as a trans man and a woman – remain legal strangers at the moment of intestacy, no matter how many years they have shared a home, raised children, pooled finances, or built a life together.
This exclusion applies even if the couple presented as a family unit. The Act prioritises formal marital status and biological/legitimised kinship over de facto arrangements for intestate purposes.
Advocate Rethabile Mathealira-Molaposaid the exclusion of same-sex partners from intestate protection reflects deep-rooted social attitudes.
“I cannot say the omission is deliberate. There are many factors at play, religion-influenced culture and societal homophobia among them. Lawmakers are politicians, and they do not want to lose popularity by pushing for laws they consider controversial,” Mathealira-Molapo said.
Mathealira-Molapo noted that same-sex couples already enjoy several constitutional protections, even if these are not fully reflected in statutory law.
“They have the right to form relationships under the right to respect for private and family life, freedom of conscience, expression, association, and assembly, as well as freedom from discrimination and equal protection of the law,” Mathealira-Molapoexplained.
Mathealira-Molapoargued that these rights extend to political participation, including the right to influence laws that affect them.
“The fact that they cannot marry is unconstitutional. If we recognise their rights in pieces, why deny them marriage? And because inheritance is based on blood or marriage, same-sex couples cannot inherit from one another except through a will,” Mathealira-Molapoadded.
The consequences are already measurable, even if they remain largely invisible in public. That silence is not evidence of equality but is evidence of surrender.
Survivors, fearing violence or further dispossession, simply walk away from the homes they helped pay for rather than endure a public legal battle they are almost certain to lose.
A woman who lost her same-sex partner said her experience exposed the vulnerability of couples whose relationships are not legally recognised.
Speaking on condition of anonymity, she recounted how the couple’s shared life was erased the moment her partner died.
“We lived together for years, and everyone knew us as a family. We shared everything. But when my partner passed away, her relatives came and claimed ownership of things they believed were hers simply because she had formal employment and I did not,” she said.
She added that both families had long been aware of their relationship and had never objected while her partner was alive.
“The problems only started after my partner’s death. If the Constitution says every person is entitled to equality before the law and equal protection of the law, why does the law still prevent us from marrying whom we choose?” she asked.
Another person who identifies as gay described how the lack of legal protection left them vulnerable after their partner’s death.
“We lived together and bought household items as a couple. It never mattered who paid for the microwave or the TV stand. We understood these were things we owned together,” they said.
They recalled the experience of watching their shared home being dismantled.
“It was incredibly painful. I was mourning my partner, and at the same time, I had to divide our belongings with my partner’s family, people I barely knew. If I took the bed, they took the couch. If I took the fridge, they took the TV. In the end, a house that was fully furnished was left half-empty.”
They said they considered going to court but quickly realised it was not a realistic option.
“I could have fought for these items, but the cost of litigation is too high for most people in this country. At least in South Africa, they have that programme X-Repo; sometimes I wish we had something like that here.”
Lesotho has no statutory doctrine of universal partnership, nor any presumption of joint contribution similar to the remedies that South African courts have occasionally applied to protect opposite-sex cohabitants.
As a result, surviving same-sex partners have no automatic claim to the deceased partner’s jointly accumulated assets.
Legal experts say an equitable claim for unjust enrichment is, in theory, available. However, pursuing such a claim requires civil litigation, which is prohibitively expensive for most people in Lesotho.
In South Africa, in the Butters v Mncora (2012) ZASCA 29 case, the Supreme Court of Appeal held that a universal partnership can exist between unmarried partners, even without an express agreement, if the conduct of the parties shows that they pooled their efforts and resources for their joint benefit.
In this case, the couple lived together for nearly 20 years, the man accumulated substantial business wealth, and the woman contributed by running their household and supporting his business ventures, though she had no formal stake in the companies.
The court recognised that they had formed a universal partnership of all property. This meant she was entitled to a share of the assets, despite not being married and despite the property being registered in his name.
The court emphasised that domestic contributions are real economic contributions capable of creating legally enforceable rights.
The case confirmed that South African courts can protect cohabitants through the common-law doctrine of universal partnership. It has been used repeatedly to protect opposite-sex cohabitants, a remedy not available under Lesotho law, where universal partnership is not recognised.
The Administration of Estates and Inheritance Act, 2024, offers what appears to be a workaround. Section 14 encourages both married and unmarried couples to execute mutual wills.
“A person aged 18 years and above owning property and being mentally capable of appreciating the nature and effect of his act may make a will,” the Act states.
It goes on: “A married or unmarried couple may make a mutual will.”
LGBTIQ+ rights advocates say that while the provision is well-intentioned, it remains painfully inadequate. In a country where stigma still forces many same-sex couples to live partially or wholly closeted, asking a notary to record a will naming a same-sex partner as sole beneficiary can amount to self-exposure, and for many, that is risky.
A second, largely unnoticed discriminatory barrier in the Administration of Estates and Inheritance Act, 2024, one that is even more insidious than the intestate succession silence, is that the executor clause quietly excludes same-sex partners again.
Even when a same-sex couple does the responsible thing and writes mutual wills, the surviving partner is still not automatically eligible to be appointed executor of the deceased partner’s estate.
Section 21 lists eligible executors, including the surviving spouse, attorneys, notaries, authorised officers of financial institutions, and certain family members working with qualified agents.
“For same-sex couples, and for other couples who cannot legally marry, such as a trans man and a woman whose union is not recognised under current law, this means that although a partner may be named as a beneficiary in a will, they cannot automatically act as executor,” an advocate said, speaking on condition of anonymity for fear of backlash.
“They must still satisfy the Act’s eligibility criteria. Where they do not, they face an added layer of legal and administrative hurdles that potential leave the management of their deceased partner’s estate in the hands of outsiders rather than the person they shared a life with,” the advocate added.
The advocate indicated that while being named as a beneficiary in a will guarantees that a surviving partner may receive assets, it does not give them legal authority over the estate.
They explained that acting as an executor, however, allows a person to manage the estate, pay debts, safeguard property, and ensure that the distribution follows the will.
“For same-sex couples in Lesotho, who must rely on wills rather than statutory intestate rights, being appointed executor can be crucial. It provides control and legal standing, and helps protect their inheritance from potential disputes with the deceased partner’s family or other relatives,” the advocate said.
There is, however, a faint possibility of reform. In November 2025, the Senate — Lesotho’s upper house — reopened debate on the Act, criticising its provisions for “fuelling family conflicts” and calling for a review.
Although the Senate is predominantly composed of principal chiefs, many of whom are conservative and primarily concerned with protecting male-centred chieftainship succession, the review process, if it proceeds, could still open a narrow but meaningful avenue for change.
One practical avenue would be a simple regulatory amendment creating a voluntary “permanent life partnership” register for inheritance and maintenance purposes only, without amending the Marriage Act. Such a mechanism would align Lesotho with emerging SADC practice and could be implemented with minimal political risk.
“Any potential amendment package must fix both problems together. It must create a voluntary ‘permanent life partnership’ registration (for inheritance and executor purposes only), and amend Section 21 to add ‘registered permanent life partner’ to the list of persons eligible to act as executor without special leave,” the advocate said.
Lesotho has already shown, through this very Act, that it can modernise centuries-old discriminatory inheritance rules when political will aligns with constitutional values. Daughters and children born outside marriage are proof of what determined reform can achieve.
The question that remains is whether the same political courage can be extended to families who love differently. Until that day arrives, every same-sex couple in Lesotho must live with the knowledge that the law, which finally remembers daughters, has, for now, forgotten them.
However, the prospect of reform offers reason to believe that this exclusion may not be permanent.
Summary
- With a single statute, the Administration of Estates and Inheritance Act, 2024, it swept away centuries of male primogeniture, abolished the Laws of Lerotholi’s rule that only the eldest male heir could inherit the family house, and declared that every child, boy or girl, born inside or outside marriage, would share equally in a deceased parent’s estate.
- Because the Marriage Act of 1974 still defines marriage as a union between one man and one woman, a same-sex partner – and other couples barred from marrying, such as a trans man and a woman – remain legal strangers at the moment of intestacy, no matter how many years they have shared a home, raised children, pooled finances, or built a life together.
- “They have the right to form relationships under the right to respect for private and family life, freedom of conscience, expression, association, and assembly, as well as freedom from discrimination and equal protection of the law,” .
Lesotho activist and journalist who is the Chairperson of the Media Institute of Southern Africa (MISA) Lesotho. He is an International Visitor Leadership Program (IVLP) alumnus.
Boloetse is driven by the need to protect and promote the rights of others, especially the marginalized segment of society. He rose to prominence as an activist in 2018 when he wrote to Lesotho communications Authority (LCA) asking it to order Econet Telecom Lesotho (ETL) and Vodacom Lesotho (VCL) to stop charging expensive out-of-bundle rates for data when customers’ data bundles get depleted.
