Prior to 1990, the right of a surviving spouse to claim maintenance from the estate of a deceased spouse was not established in South African law, because it contradicted the principle of freedom of testation. In 1990, the Maintenance of Surviving Spouses Act (“the Act”) came into effect. This Act provides the surviving spouse with a claim for maintenance against the estate of the deceased spouse. The Maintenance of Surviving Spouses Act, 27 of 1990, surviving spouses have, where their marriage was dissolved by death, a claim for maintenance against the estate of their deceased spouses until either the death or remarriage of that surviving spouse.

The requirements that must be fulfilled for the surviving spouse to claim are:

i. Reasonable maintenance needs

ii. So far as he/she is not able to provide thereof from his/her own means and earnings

iii. Such a claim ranks in the same order of preference as that of a child.

Section 3 of the Act determines what ‘reasonable maintenance means’ is. It states that in the “determination of the reasonable maintenance needs of the survivor, the following factors shall be considered in addition to any other factor which should be considered:

a) The amount of the estate of the deceased spouse available for distribution to heirs and legatees;

b) The existing and expected means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage; and

c) The standard of living of the survivor during the subsistence of the marriage and age at the death of the deceased spouse.”

The executor of the deceased estate must take the requirements above into account when determining the amount of the claim against the estate. The surviving spouse must have been married to the deceased at the time of his/her death for the Act’s provisions to be applicable. In the case of Kruger v Goss (2009), it was determined that an ex-spouse does not have a claim for maintenance against the deceased estate of her ex-husband. The court held that that the duty of support that spouses owe each other, and consequently the liability for maintenance, are incidents of their matrimonial relation. Termination by death brings that duty to an end.

To allow an ex-spouse to bring a claim under the Act may diminish or exclude:

i. The maintenance claims of children

ii. The rights of beneficiaries

iii. Claims of the (deceased’s current) surviving spouse

A spouse can bind his/her estate to pay maintenance after death, that is, by declaring in his/her will that their estate must pay maintenance to his current spouse and/or ex-spouse. Typically, where the parties have divorced, such a provision is included in the divorce settlement agreement. This means that in a settlement agreement, the parties can agree that their obligations as contained therein, including that of maintenance, is binding on their respective deceased estates.

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