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Claiming maintenance from a deceased estate
01 October 2019  | Crystelle Steyn
 

 

Children

A duty to pay maintenance starts when a child is born and ends when a child is 18 years old or self-supporting and both parents are responsible to maintain their children according their respective means and financial positions.

What happens when one parent passes away?

The duty to maintain a child continues even after the death of a parent. A child under the age of 18 can lodge a claim for maintenance against the deceased parent’s estate or if there is already a maintenance order against the deceased parent it will also become binding on his/her estate until the child reaches the age of 18 or becomes self-supporting.

A child above the age of 18 who is not self supporing can also claim against a deceased parent’s estate but will have to prove the following:

  • That he/she does in fact require support;
  • The amount of the support needed.

A claim for maintenance in respect of a child is preferent to all the other claims against the deceased parent’s estate including claims from heirs. The only exception is debts owed by the estate.

Spouses who were married by time of death

A surviving spouse can claim maintenance from their spouse’s estate if they were married by the time of death, they were financially dependant on them and also if the deceased never made any provision in his/her Will for maintenance for the surviving spouse.

According the Maintenance for Surviving Spouses Act 27 of 1990, a surviving spouse can only claim maintenance if he/she has the reasonable maintenance needs which must consider the amount available in the estate, the existing earning capacity, the financial needs and also the standard of living of the surviving spouse during the marriage. The surviving spouse should also not be able to provide for this needs from his/her own earning capacity.

Ex-spouses

An ex-spouse can not claim from their ex husband or wife’s deceased estate as a duty to maintain a spouse ends when a marriage is dissolved by way of divorce or death.

The exception to this rule is that an ex-spouse can only claim maintenance should there be a divorce order stipulating that spousal maintanance should be paid and it should specifically state that this maintenance order will be binding to the spouse’s estate.

A claim for spousal maintenance has the same preference as a claim for a child’s maintenance and it can be received until the death or remarriage of the surviving spouse.

 
 
 
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