Deceased spouse’s estate
WHEN the Maintenance of Surviving Spouse’s Act slipped into law in 1990 it attracted scant attention and the full implications of the legislation were not realised.
The provision that a surviving spouse was allowed to claim maintenance from the estate of the deceased spouse was seen as a necessary protection, usually for a wife, whose husband had excluded her from any benefit from his estate. However, the perception was that most married couples would benefit one another in their wills and that few would need to rely on the legislation for assistance.
What was not foreseen was that the act could frustrate the estate planning initiatives of a spouse whose focus was on the distribution of his surplus wealth to the next generation or to a family trust. With the ever-increasing divorce rate, however, the advent of a second marriage has become almost the norm.
It is in this situation that the provisions of the act have disclosed unexpected results when the interests of the “second spouse” conflict with the interests of the children from the first marriage.
The act enables surviving spouses, in certain circumstances, to claim “reasonable maintenance” from the estate of the deceased spouse until their death or remarriage, in so far as the survivors are unable to provide for themselves from their own means. The issue becomes one of amount (quantum) and depends, among others, on various factors, which include the following.
The net value of the estate of the first-dying spouse.
The existing or expected means and earning capacity of the surviving spouse. The duration of the marriage. The standard of living maintained during the marriage.