Every South African is entitled to leave their assets to whomever they wish by way of a Last Will and Testament or in terms of intestate succession should there be no valid Last Will and Testament, and strictly speaking no one is entitled to benefit from a deceased’s estate unless they are specifically mentioned in the Testament or entitled per the laws of intestate succession, however there are instances where this not applicable such as maintenance claims lodged against the estate by the child(ren) or surviving spouse of the deceased.
Rights of children claiming maintenance against estate of deceased parent
The duty of a parent to support their child does not terminate upon the parents death, and therefore a child can lodge a claim against their deceased parent’s estate and such support endures until the child is self-supporting. This includes both minor children and children over the age of 18, however when a child over the age of 18 wishes to lodge a claim against their deceased parents estate the claim will need to be accompanied with proof that the child is in need of such support and the extent to which support is required. It is important to note that a child’s maintenance claim ranks above all other claims against the estate including those of heirs and legatees, except for debts owed to creditors of the estate. A minor child’s claim is lodged by the legal guardian on behalf of the minor child, while a child over 18 years of age can lodge their own claim.
Rights of surviving spouse claiming maintenance against estate of deceased spouse
The Maintenance of Surviving Spouses Act (“the Act”) now provides for a surviving spouse to lodge a claim for spousal maintenance from the estate of their deceased spouse. Such a claim must be for reasonable maintenance needs where the surviving spouse is unable to provide for their needs by their own means. A spousal maintenance claim in terms of the Act An ex-spouse cannot lodge a claim against the estate of the deceased ex-spouse unless the settlement agreement has made provision for spousal maintenance to be binding on their estates.
Spousal maintenance claim against the estate will continue until the death or remarriage of the surviving spouse. Lastly, surviving spouses claim for maintenance falls in the same order of preference as with the child’s claim, however should the child and surviving spouse both lodge claims then each claim may be reduced proportionality depending on liquidity of the estate