In which instances can a claim for spousal maintenance be lodged against a deceased estate?“

My husband and I were married out of community of property before he suddenly passed away in an accident. It has come to my attention after obtaining his last will and testament that he has bequeathed his entire estate to his mistress and has completely disinherited me. My husband was the breadwinner of the family and I was unemployed. I now face eviction from our home and starvation as I have no other income whatsoever. What can I do?”

Whether you are married in or out of community of property you have a right to claim for maintenance against the deceased estate in terms of the Maintenance of Surviving Spouses Act, when it is established that a surviving spouse will be left destitute if the estate of the deceased, which is able to pay maintenance, refuses to maintain the spouse.

Thus, where a surviving spouse is unable to maintain herself from her own means and earning, such surviving spouse shall have a claim against the estate of the deceased for her reasonable maintenance needs.

In determining the reasonable maintenance for the surviving spouse account must be taken of the following:

1. The amount available for distribution amongst the heirs and legatees;
2. The existing and expected means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage; and
3. The standard of living of the survivor during the subsistence of the marriage and her age at the death of the deceased spouse.

Should you qualify for spousal maintenance you need to submit your claim to the executor of the deceased estate and normally you would have to obtain an actuarial report to sustain your claim.

A survivor spouse in terms of the act includes parties to a Muslim marriage as well as a surviving partner of a life partnership and includes a person living in a permanent life partnership.  “Marriage” is for the purposes of the Act includes a permanent life partnership.

The Act makes provision for such maintenance by ensuring that, provided its jurisdictional requirements are met, the primary obligation of a spouse to support his or her mate continues after his or her death.

The claim for maintenance shall also be included in the estate as a liability, which means that before any party may inherit from the estate, the liabilities must first be settled, This will also determine if the estate is solvent or insolvent.

In the circumstances it is advisable that you approach the offices of competent attorney that knows how to calculate and lodge a claim against an estate for assistance in order to assist you to quantify your claim and ensure that your claim is lodged timeously.