The surviving spouse in a marriage dissolved by death has a claim against the estate of the deceased spouse for the provision of his or her reasonable maintenance needs until his or her death or re-marriage in so far as s/he is not able to provide therefor from his own means and earnings.
Claim for maintenance against estate of deceased spouse
1. 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 reasonable maintenance needs until his death or re-marriage in so far as he is not able to provide therefor from his own means and earnings.
2. The survivor shall, in respect of a claim for maintenance, not have a right of recourse against any person 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 that Act.
a. The proof and disposal of a claim for maintenance of the survivor shall, subject to paragraphs (b), (c) and (d), be dealt with in accordance with the provisions of the Administration of Estates Act, 1965 (Act No. 66 of 1965).
b. The claim for maintenance of the survivor shall have the same order of preference in respect of other claims against the estate of the deceased spouse as a claim for maintenance of a dependent child of the deceased spouse has or would have against the estate if there were such a claim, and, if the claim of the survivor and that of a dependent child compete with each other, those claims shall, if necessary, be reduced proportionately.
c. In the event of a conflict between the interests of the survivor in his capacity as claimant against the estate of the deceased spouse and the interests in his capacity as guardian of a minor dependent child of the deceased spouse, the Master may defer the claim for maintenance until such time as the court has decided on the claim.
d. The executor of the estate of a deceased spouse shall have the power to enter into an agreement with the survivor and the heirs and legatees having an interest in the agreement, including the creation of a trust, and in terms of the agreement to transfer assets of the deceased estate, or a right in the assets, to the survivor of the trust, or to impose an obligation on an heir or legatee, in settlement of the claim of the survivor or part thereof.
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 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.
See these articles dealing with what a ‘spouse” means