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Maintenance of surviving spouse

The idea of freedom of testation is a core value of South African law and enjoys wide protection. The Maintenance of Surviving Spouse Act, 27 of 1990, was drafted to give a spouse legal recourse if disinherited or negatively affected by the wishes of the testator, or in the case of intestate succession. The goal of this piece of legislation is to ensure that a person is not left destitute after the death of the spouse.

Who can claim?

The definition of the Act describes a surviving spouse as “survivor”, meaning the surviving spouse in a marriage dissolved by death.

What can be claimed?

Section 2(1) of the Act determines as follows:

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 for the provision of his/her reasonable maintenance needs until his/her death or remarriage in so far as he/she is not able to provide therefor from his/her own means and earnings.

What is the definition of own means?

“Own means” include any money, or property, or other financial benefit accruing to the survivor in terms of the matrimonial property law or the law of succession or otherwise at the death of the deceased spouse.

What is reasonable maintenance needs?

Section 3 of the Act determines as follows:

“Determination of reasonable maintenance needs – In the determination of the reasonable maintenance needs of the survivor, the following factors shall be taken into account in addition to any other factor which should be taken into account:

  • The amount of 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/her age at the death of the deceased spouse.”

The executor of the deceased estate has to take the above requirements into account when determining the amount of the claim against the estate.

Please contact Inge Heath at inge@asl.co.za if you have any questions.