Maintenance Claims Against Deceased Estates

Maintenance claims against a deceased estate can arise due to a variety of causes,  including a maintenance claim by an ex-spouse in terms of a divorce order, a maintenance claim by a dependant surviving spouse, or a maintenance claim arising from another dependant relationship such as if a deceased has dependant children.


The existence of a maintenance claim is dependent on the circumstances of each case. For example, in terms of the Maintenance of Surviving Spouses Act 27 of 1990, a surviving spouse has a claim for reasonable maintenance from their deceased spouse’s estate until their death or remarriage in so far as the surviving spouse is not able to provide for themselves from their own means and earnings (section 2). In determination of the reasonable maintenance needs of a surviving spouse, the following factors can be taken into account (section 3):


  • The amount available in the estate for distribution to beneficiaries (including heirs and legatees);
  • The current or expecting means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage;
  • The survivor’s standard of living during the marriage;
  • The survivor’s age at the death of the deceased.


Since the promulgation of the Act, the definition of a “survivor” (being a surviving spouse) has been extended to cover more diverse relationships such as monogamous Muslim marriages (Daniels v Campbell 2004 (5) SA 331 (CC)).


We have assisted a number of clients with assessing whether or not they have a maintenance claim against a deceased estate, and, if so, calculating the value of their claim, lodging the claim with the appointed executor and negotiating settlements, if necessary.