Understanding the Maintenance of Surviving Spouses Act: How to lodge a claim against a deceased estate in South Africa

The death of a spouse can leave the surviving partner not only emotionally devastated, but also financially vulnerable. South African law recognises this risk and provides protection through the Maintenance of Surviving Spouses Act 27 of 1990. This Act gives a surviving spouse — and since 2024, qualifying permanent life partners — the right to claim reasonable maintenance from the deceased’s estate if they cannot support themselves adequately.

The Maintenance of Surviving Spouses Act provides that when a marriage (or recognised life partnership) is dissolved by death, the surviving spouse may claim reasonable maintenance from the deceased spouse’s estate until death or remarriage, to the extent that they cannot provide for themselves from their own means and earnings.

The 2023 amendment (effective April 2024) expanded the definition of marriage and spouse to include permanent life partnerships where partners undertook reciprocal duties of support.

A claim may be lodged by:

• A surviving spouse of a legally recognised marriage if the marriage was still in existence at the time of death.
• A surviving partner in a permanent life partnership. This is now included under the Act where partners had reciprocal support obligations.

Ex‑spouses do not qualify - as confirmed in Kruger v Goss (2009), once a marriage is terminated (e.g. divorce), the reciprocal duty of support ends and an ex‑spouse cannot claim under the Act against the deceased’s estate.

To succeed, the surviving spouse must meet the following statutory conditions:

1. Reasonable maintenance needs

The estate must provide maintenance only for reasonable needs, assessed according to:

• The value of the estate available for heirs
• The survivor’s earning capacity, means, needs and obligations
• The standard of living during the marriage
• The survivor’s age at the spouse’s death

2. Inability to self‑provide

The survivor must show they cannot meet their maintenance needs from their own means and earnings.

3. The marriage/partnership must have existed at the time of death

Claims apply only to spouses or life partners of the deceased at the time of death.

4. The claim must be against the estate — not against heirs individually

The Act specifically prevents a surviving spouse from suing heirs or beneficiaries directly. Maintenance claims must be directed only against the estate, through the executor.

How to lodge a maintenance claim against a deceased estate

The procedure for lodging a claim is as follows:

Step 1: Notify the executor and the master of the high court

A surviving spouse must formally notify:

• The executor of the deceased estate
• The Master of the High Court

This written notification sets out that the spouse intends to claim maintenance from the estate. This follows the same procedural model used for child and dependant maintenance claims.

Step 2: Prepare and submit a detailed statement of needs

The survivor must compile a written statement including:

• Monthly living expenses and financial obligations
• Current income, benefits and assets
• Any lump‑sum entitlements from the marriage (e.g. accrual)
• A calculation of the shortfall they require from the estate

This allows the executor to determine whether the spouse meets the statutory test of inability to support themselves.

There is no statute that expressly says an actuarial calculation is compulsory, but in practice it is usually required to quantify the claim, satisfy the executor and Master of the High Court and withstand objection or court scrutiny.

Step 3: Executor evaluates the claim

The executor must consider:

• The estate’s available funds
• Competing claims (e.g. debts, children’s maintenance, taxes)
• The statutory maintenance factors in Section 3 of the Act

The executor then determines the maintenance amount (if any) and includes it in the Liquidation and Distribution Account (L&D Account).

Step 4: Inspection and objection period

The estate's L&D account is made available for public inspection. Anyone, including heirs, may lodge objections with the Master. The Master may require amendments or ask for further justification for the maintenance award.

Step 5: Payment of the maintenance

If approved, the maintenance is paid out according to the estate’s distribution schedule. Payments may be:

• A lump sum, or
• Periodic payments (less common, unless specified in a Will or court order)

Once paid, heirs cannot claim back amounts paid as maintenance.

Important considerations

• The claim ranks highly

A spouse’s maintenance claim ranks similarly to a child’s maintenance claim — above heirs and legatees.

• Freedom of testation is limited

Although South African law generally allows a person to bequeath their estate as they wish, the Act overrides Wills that inadequately provide for a dependent spouse.

• Life Partners Must Prove Reciprocal Support

Partners relying on the new 2024 amendment must show evidence of a committed relationship with mutual support obligations.

This mechanism ensures that spouses are not left destitute after the loss of a partner and that estates fulfil their legal duty of support before distributing assets to heirs.