Where a marriage is dissolved by death the surviving spouse is accorded the right to claim maintenance from the estate of the first dying spouse. This is in terms of the Maintenance of Surviving Spouses Act, 27 of 1990 and it applies to all marriages which were entered into after the 1st July 1990.
The amount of maintenance is a “reasonable amount” and where the surviving spouse cannot provide for himself from his own means. The Act refers to “him” but applies equally to widows.
The amount of maintenance that can be claimed is regulated by section 3 and is determined according to:
- The amount that is available in the estate;
- The existing or expected means of the surviving spouse, earning capacity and the subsistence of the marriage ; and,
- The standard of living of the parties.
The surviving spouse must lodge his claim as soon as possible, as there will be no right to proceed against any person to whom any benefit has been paid or delivered. If therefore a bequest has been paid or transferred to any person the spouse cannot claim against that beneficiary to return amounts received for onward payment to the surviving spouse.
In regard to the claim procedure, the spouse would lodge an affidavit with the executor and the executor can insist on an appearance before the Master or a Magistrate.
There is no special preference in the spouse’s claim and he will stand in the same order of preference as would a child who is claiming maintenance, and any conflict between the spouse and the child (i.e. where both are lodging claims for maintenance against the estate) then the claims of both are reduced proportionately. In regard to preference, note however that the claim for a surviving spouse in respect of maintenance is paid before the heirs and legatees.
In regard to payment – if there is nothing in the estate – no maintenance can be paid, but where there is money the executor may enter into agreements with heirs and legatees, trusts can be created and assets may be transferred to beneficiaries with the reciprocal duty on those heirs or legatees to take on the duty of maintenance.
Spouses who are married, or who are part of a union in terms of the Civil Union Act, or in a customary union, or spouses in a Muslim marriage have this right to claim maintenance. Those who are divorced have no claim, and neither do partners in a permanent arrangement with no official State sanction,
Many spouses do not realise their rights to claim from estates but it does exist and should be pursue.