Maintenance of the surviving spouse in South Africa : the challenges faced by the executor

Abstract

The Maintenance of Surviving Spouses Act 27 of 1990 came into operation thirty years ago and has remained relatively unchanged since its promulgation. The stated objective of the Act is to provide the surviving spouse with a claim for maintenance against the estate of the deceased spouse in certain circumstances. This objective is sound, as it is evident from an analysis of the history of our law that legislation was needed to address the financial position of a survivor following the death of his or her spouse. The practical application of the Act is, however, not as robust as it does not always achieve the stated objective and often leads to unintended consequences. This research has a dual objective. The first aim is to analyse the practical considerations when an executor applies the Act and to consider the challenges the executor must deal with when considering a maintenance claim under the Act. The second aim is to investigate possible solutions to these challenges and to consider whether there are viable alternative arrangements for the way in which a maintenance claim under the Act is handled. The purpose of the study is to formulate a comprehensive recommendation for legislative reform of the Act so that the practical application of the Act achieves a result that reflects the objective of the Act.