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Maintenance of Surviving Spouses Act, 1990

Act 27 of 1990

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Maintenance of Surviving Spouses Act, 1990
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Act 27 of 1990
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South Africa

Maintenance of Surviving Spouses Act, 1990

Act 27 of 1990

  1. [Amended by Estate Affairs Amendment Act, 1992 (Act 1 of 1992) on 1 October 1993]
  2. [Amended by Reform of Customary Law of Succession and Regulation of Related Matters Act, 2009 (Act 11 of 2009) on 20 September 2010]
  3. [Amended by Judicial Matters Amendment Act, 2023 (Act 15 of 2023) on 3 April 2024]
To provide the surviving spouse in certain circumstances with a claim for maintenance against the estate of the deceased spouse; and to provide for incidental matters.BE IT ENACTED by the State President and the Parliament of the Republic of South Africa, as follows:—

1. Definitions

In this Act, unless the context otherwise indicates—“court” means a court as defined in section 1 of the Administration of Estates Act; 1965 (Act No. 66 of 1965);“executor” means an executor as defined in section 1 of the Administration of Estates Act, 1965, or any person who liquidates and distributes an estate on the instructions of the Master;"marriage" for the purposes of this Act includes a permanent life partnership in which the partners undertook reciprocal duties of support;[definition of "marriage" inserted by section 15(a) of Act 15 of 2023]“Master” means a Master as defined in section 1 of the Administration of Estates Act, 1965;“own means” includes any money or property or other financial benefit accruing to the survivor in terms of the matrimonial property law or the law of succession or otherwise at the death of the deceased spouse;"spouse" for the purposes of this Act, includes a person in a permanent life partnership in which the partners undertook reciprocal duties of support;[definition of "spouse" inserted by section 15(b) of Act 15 of 2023]“survivor” means the surviving spouse in a marriage dissolved by death, and includes—(a)the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate; and(b)a spouse of a customary marriage which was dissolved by a civil marriage contracted by her husband in the customary marriage to another woman on or after 1 January 1929 (the date of commencement of sections 22 and 23 of the Black Administration Act, 1927 (Act No. 38 of 1927)), but before 2 December 1988 (the date of commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988 (Act No. 3 of 1988)).[definition of “survivor” substituted by section 8 of Act 11 of 2009 and by section 15(c) of Act 15 of 2023]

2. Claim for maintenance against estate of deceased spouse

(1)If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefor from his own means and earnings.
(2)The survivor shall, in respect of a claim for maintenance, not have a right of recourse against any person to whom money or property has been paid, delivered or transferred in terms of section 34(11) or 35(12) of the Administration of Estates Act, 1965 (Act No. 66 of 1965), or pursuant to an instruction of the Master in terms of section 18(3) or 25 (1)(a)(ii) of that Act.
(3)
(a)The proof and disposal of a claim for maintenance of the survivor shall, subject to paragraphs (b), (c) and (d), be dealt with in accordance with the provisions of the Administration of Estates Act, 1965 (Act No. 66 of 1965).
(b)The claim for maintenance of the survivor shall have the same order of preference in respect of other claims against the estate of the deceased spouse as a claim for maintenance of a dependent child of the deceased spouse has or would have against the estate if there were such a claim, and, if the claim of the survivor and that of a dependent child compete with each other, those claims shall, if necessary, be reduced proportionately.
(c)In the event of a conflict between the interests of the survivor in his capacity as claimant against the estate of the deceased spouse and the interests in his capacity as guardian of a minor dependent child of the deceased spouse, the Master may defer the claim for maintenance until such time as the court has decided on the claim.
(d)The executor of the estate of a deceased spouse shall have the power to enter into an agreement with the survivor and the heirs and legatees having an interest in the agreement, including the creation of a trust, and in terms of the agreement to transfer assets of the deceased estate, or a right in the assets, to the survivor or the trust, or to impose an obligation on an heir or legatee, in settlement of the claim of the survivor or part thereof.[paragraph (d) substituted by section 2 of Act 1 of 1992]

3. Determination of reasonable maintenance needs

In the determination of the reasonable maintenance needs of the survivor, the following factors shall be taken into account in addition to any other factor which should be taken into account:
(a)The amount in the estate of the deceased spouse available for distribution to heirs and legatees;
(b)the existing and expected means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage; and
(c)the standard of living of the survivor during the subsistence of the marriage and his age at the death of the deceased spouse.

4. Short title and commencement

This Act shall be called the Maintenance of Surviving Spouses Act, 1990, and shall come into operation on a date fixed by the State President by proclamation in the Gazette.
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Cited documents 3

Act 3
1. Administration of Estates Act, 1965 3234 citations
2. Black Administration Act, 1927 708 citations
3. Marriage and Matrimonial Property Law Amendment Act, 1988 33 citations

Documents citing this one 46

Judgment 31
1. Daniels v Campbell NNO and Others (CCT 40/03) [2004] ZACC 14 (11 March 2004) 16 citations
2. Volks NO v Robinson and Others [2005] ZACC 2 (21 February 2005) 11 citations
3. S T v C T (1224 of 2016) [2018] ZASCA 73 (30 May 2018) 10 citations
4. Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51 (31 December 2021) 6 citations
5. King NO and Others v De Jager and Others [2021] ZACC 4 (19 February 2021) 5 citations
6. McDonald v Young (292/2010) [2011] ZASCA 31 (24 March 2011) 5 citations
7. Paixao and Another v Road ACCident Fund (640/2011) [2012] ZASCA 130 (26 September 2012) 5 citations
8. Women’s Legal Centre Trust v President of Republic of South Africa and Others [2022] ZACC 23 (28 June 2022) 4 citations
9. Fundsatwork Umbrella Pension Fund v Guarnieri and Others (830/2018) [2019] ZASCA 78 (31 May 2019) 3 citations
10. President of the RSA and Another v Women’s Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (612/2019) [2020] ZASCA 177 (18 December 2020) 2 citations
Gazette 15
1. South Africa Government Gazette dated 1992-03-11 number 13815
2. South Africa Government Gazette dated 1992-03-11 number 13816
3. South Africa Government Gazette dated 1996-02-02 number 16943
4. South Africa Government Gazette dated 1997-08-08 number 18166
5. South Africa Government Gazette dated 2006-09-21 number 29237
6. South Africa Government Gazette dated 2008-01-14 number 30663
7. South Africa Government Gazette dated 2009-04-21 number 32147
8. South Africa Government Gazette dated 2011-01-21 number 33946
9. South Africa Government Gazette dated 2013-11-06 number 37005
10. South Africa Government Gazette dated 2020-04-03 number 43192 part 1