Does a claim for maintenance fall away when you die?

06 November 2023 ,  Tebello Setleko 546
A question that often arises is what happens to a person’s maintenance obligations when they pass away. In this article, we have a look at what the legal position is regarding maintenance in the event of death.

When a person passes away, the executor administers their estate in terms of the deceased’s will or where there is no will, in terms of the Intestate Succession Act 81 of 1987. In both cases, the estate assets will be used to pay for claims against the estate and any remaining balance is then paid over to the heirs. Such claims include maintenance claims for the surviving spouse, minor children and dependents of the deceased and which are permitted by law even in the absence of an express provision to that effect. With the exception of debts owed to creditors, maintenance claims are ranked above all other claims against the estate, including those of the heirs and legatees. 

The Maintenance of Surviving Spouses Act 27 of 1990 (“MSSA”) provides a framework for the surviving spouse to lodge a claim for maintenance against the estate, for their reasonable maintenance needs. The objective of the MSSA is to ensure that the surviving spouse is not left destitute after the death of their spouse. The claim is lodged with the executor, who will then determine whether the claim is for the reasonable maintenance needs of the spouse and whether such a claim should be included in the Liquidation and Distribution account. Section 3 of the MSSA provides for factors to be considered in determining whether the maintenance claim is for the reasonable needs of the surviving spouse, such as the amount available in the estate and the earning capacity and financial needs of the spouse and the standard of living of the surviving spouse during the subsistence of the marriage and his or her age at the death of the deceased spouse. It is crucial for the executor to carefully consider accepting or rejecting this claim as it influences the amount to be inherited by the heirs in the estate. Once accepted by the executor, the claim will be added to the Liquidation and Distribution account and will be paid out after the estate liabilities are settled. The claim is valid even when the deceased has left a will indicating specific heirs, to the exclusion of the surviving spouse. 

The MSSA only makes provision for spouses where the marriage is dissolved by death. This means that a maintenance claim cannot be brought against the deceased estate of a former wife or husband, unless express provisions to this effect were undertaken by the deceased. In cases where the deceased was paying maintenance to a former spouse in terms of the provisions of a divorce order, such maintenance may be claimed against the estate of the deceased. The right to maintenance of the surviving spouse against the deceased estate is valid until their death or remarriage.  

The Children’s Act 38 of 2005 and the Maintenance Act 99 of 1998 provides for the right of children to maintenance by their parents, until they become self-supporting. Children may claim maintenance against the estate of a deceased parents, regardless of whether they were born in or out of wedlock or were adopted by the deceased. The guardian of the minor child can lodge a maintenance claim on behalf of the child, for the needs of the child, to the executor in the estate. The claim will be considered by the executor and included as a claim against the estate once accepted. Where the deceased had maintenance orders which were payable during his lifetime, such maintenance orders will also be binding against his estate. 

A child who is no longer a minor may also lodge a maintenance claim against the deceased estate of a parent. However, the major child will have to prove a need for the maintenance and the amount and extent to which the maintenance is required. Being an heir or legatee in the estate does not preclude a child from lodging a maintenance claim against the estate. The maintenance claim will be paid to the guardian of the child before the inheritance or legacy is paid out. This is to ensure that the child’s needs are met while the administration process of the estate is being finalised. The monetary inheritance of a minor child is paid into the state’s Guardians Fund and can be claimed by the child once they are a major or at the age indicated by a testator.

When lodging a maintenance claim, all the monthly expenses and needs of the claimant must be easily ascertainable. Should a surviving spouse and a child of the deceased lodge competing maintenance claims against the estate, the executor may reduce both claims proportionally in order to accommodate both parties. 

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s). 
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