The Maintenance of Surviving Spouses Act 27 of 1990 (hereinafter referred to as “the Act”) allows, in certain circumstances, widows / widowers to be maintained from their deceased spouses estate.  This is obviously in conflict with the common law, which requires that a matrimonial relationship exist between the parties, which gives rise to a duty of support.  Death or divorce ordinarily brings that matrimonial relationship to an end.  The aforementioned Act therefore altered the common law in this regard.

Maintenance for spouses

A surviving spouse, regardless of the matrimonial property regime in terms of which they are married, may have a claim for their reasonable maintenance requirements against the deceased’s estate. Section 2(1) of the Act provides that:- “If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse or the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefore from his own means and earnings.” A claim for maintenance by a surviving spouse will compete with a claim for maintenance of a dependant or minor child and will reduce such claims proportionately.  Such a claim for maintenance only arises if the surviving spouse is unable to provide for his/her maintenance needs from his/her own earnings. The surviving spouse shall not have any recourse against any person to whom money or property has already been paid. A claim in terms of the Maintenance of Surviving Spouses Ac is deductible for estate duty purposes, provided that such claim is reasonable.

Factors to be taken into account

In terms of Section 3 of the Act the following factors must be taken into account when determining the reasonable maintenance requirements of the surviving spouse: (a) The amount in 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 his age at the death of the deceased spouse.” Other factors which can be taken into account are: the duration of the marriage, the surviving spouse’s age at the time of the deceased’s death and any other relevant factor. Oshry NO v Feldman (401/09) ¹ ZASCA 95 The parties in the aforementioned matter married later in life and it was a second marriage for both parties, with both having children from their previous marriage relationships.  The parties were married for some 18 years. The court found in this matter that the primary obligation of support rests on a spouse, and if deceased, on the estate of the deceased spouse.  The duty of support does not rest on the Respondent’s sons, as submitted by the Appellant’s. In was stated that the Maintenance of Surviving Spouses Act was intended to ensure that the maintenance obligation of a spouse who owed a duty of support continued after death. In casu, the court held that the Respondent was in need of maintenance and that there was no reason why a lump sum payment could not be awarded, particularly in these circumstances, where the Respondent had not yet received any maintenance from the deceased’s estate for nearly 5 years. The appeal was upheld and a limited substituted order put in place which recognized the Respondent’s claim against the deceased’s estate, including a lump sum payment.

Maintenance for children

In terms of the 1906 matter of Carelse v Estate de Vries, it was decided that, in the absence of suitable testamentary provisions in respect of children, the minor children may have a maintenance claim against the parent’s deceased estate.  It was similarly held that major children, who are not yet self-supporting, may also claim against the deceased estate.  The major child would however have to prove that he/she requires financial support and the extent of support which they require. A minor or dependant child’s claim for maintenance ranks preferent to all other claims against the deceased estate, with the exception of debts owed to creditors.