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your attorneys.


ASHLEY SLAMAT ATTORNEYS – Success is the Only option™

A surviving spouse has a claim against the estate of the deceased spouse for the provision of reasonable maintenance until his or her death or re-marriage, subject also to whether or not the surviving spouse is unable to provide for him/herself from their own means.

Essentially, the Act created a statutory right and permits such a claim for maintenance against estate of deceased spouse in circumstance where:

  1. the marriage is dissolved by death after the commencement of the Act;
  2. The surviving spouse shall, in respect of his/her claim for maintenance, have no right of recourse against any person (beneficiary or heir) to whom money or property has been paid, delivered or transferred in terms of section 34(11) or 35(12) of the Administration of Estates Act, 1965 (Act No. 66 of 1965), or pursuant to an instruction of the Master in terms of section 18(3) or 25(1)(a)(ii) of Act No. 66 of 1965.

Determination of reasonable maintenance needs in regard to maintenance of surviving spouses

In the determining the ‘reasonable maintenance needs’ of the surviving spouse, the following factors shall be taken into account in addition to any other factor which should be taken into account:

  • The amount in the estate of the deceased spouse available for distribution to heirs and legatees;
  • the existing and expected means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage; and
  • the standard of living of the survivor during the subsistence of the marriage and his age at the death of the deceased spouses.

Scenarios and case law

The law stipulates that, if a person, whether in error or with intent, fails to make provision in his or her will for the maintenance of a person to whom they owe a legal duty of support (for example, a minor child) the latter can lodge a claim against the deceased estate for maintenance.

At South African common law, a surviving spouse had no right to claim maintenance from the estate of the first-dying spouse, even if the survivor was left destitute. (rf Glazer v Glazer N.O. 1963 (4) SA 694 (A) and in Hodges v Coubrough N.O. 1991 (3) SA 58 (D)). Neither could a court make an order in terms of the Divorce Act to bind the estate of the deceased spouse to maintain the surviving spouse. This could however be achieved by creation in a contract, for example in a divorce agreement.

Statutory right

In 1990, the enactment of the Maintenance of Surviving Spouses Act 27 of 1990 changed the law in this regard and afforded a surviving spouse a claim for maintenance against the estate of the first-dying spouse in respect of reasonable maintenance until death or remarriage, but only in so far as he or she is unable to provide for their maintenance from his or her own means and earnings.

Various cases have come before the courts since then in regard to certain aspects of the legislation and all of these have a significant bearing on the claim of the surviving spouse which requires expert legal knowledge and experience to deal with to avoid heartache and disappointment.

The right to claim is also is applicable to same-sex partners in a permanent life relationship, as was confirmed in the case of Ripoll-Dausa v Middleton N.O. 2005 (3) SA 141 (C).

In the acrimonious case of Feldman v Oshry N.O. 2009 (6) SA 454 (KZD) a few notable provisions of the Act arose for interpretation and adjudication by the high court and subsequently by the Supreme Court of Appeal.

Firstly, the high court ruled that, in determining whether the surviving spouse was in need of maintenance, no account should be taken of contributions towards the claimant’s maintenance needs by the claimant’s own children.

Secondly, the high court also held that any award of maintenance made by the court in terms of this Act had to be in the form of periodical payments and cannot take the form of a lump-sum payment. This finding was subsequently overturned by the Supreme Court of Appeal which held that a lump sum payment is competent. The appeal court also held at that a donation made to the claimant, but not paid prior to the deceased’s death, had to be paid from the deceased estate.

The appeal court also ordered that the two executors of the deceased estate pay the substantial costs of the appeal de bonis propriis and the cross-appeal de bonis propriis.

It is essential to act expeditiously in the event that you wish to lodge a claim in terms of the Act as deceased estates invariably experience significant delays in the administration thereof and in addition thereto family disputes and litigation occurs very frequently which depletes the assets or value in the estate itself.  ASHLEY SLAMAT ATTORNEYS – Copyright