Can a Testator Disinherit Their Surviving Spouse?

03 October 2023 ,  Sinazo Mau-Mau 961

The Maintenance of Surviving Spouses Act 27 of 1990 permits surviving spouses to seek maintenance from the deceased spouse's estate upon the marriage ending due to death. This claim lasts until the survivor's death or remarriage and factors in estate value, the survivor's financial circumstances, marriage duration, living standards, and age.

It is widely recognised that testators have the freedom to distribute their assets as they see fit. However, certain laws, grounded in public policy, limit this freedom. While many legislations restrict the freedom of testation, this article will specifically focus on the Maintenance of Surviving Spouses Act 27 of 1990.

When a marriage is in community of property, the surviving spouse automatically receives 50% of the joint estate upon the other's death due to the nature of the marriage. A will cannot change this entitlement. However, such an exclusion in a will might impact any potential maintenance claim by the surviving spouse. In the Hodges vs. Loubrough case, Didcott J observed that the mutual duty of support between spouses, and the consequent maintenance obligations, arise from their matrimonial bond. Once this relationship ends, either by death or divorce, that duty ceases. The Maintenance of Surviving Spouses Act 27 of 1990 (the Act), changed this common law perspective.

The Act, effective from 1 July 1990, was introduced to allow surviving spouses a claim for maintenance against the estate of the deceased under certain conditions. According to Section 2(1) of the Act, if a marriage ends due to the death of one spouse after the Act's commencement, the surviving spouse can claim from the deceased's estate for their reasonable maintenance. This claim can continue until the surviving spouse's death or remarriage, provided that the surviving spouse cannot meet these needs through their own earnings. 
Section 3 of the Act states that in determining the reasonable maintenance needs the following is taken into consideration:

-the amount in the deceased estate available for distribution to heirs and legatees;
-the existing and expected means, earning capacity, financial needs and obligations of the survivor;
-the subsistence of the marriage;
-the standard of living of the survivor during the substance of the marriage; and
-the survivor’s age at the date of death.

It's evident that if a marriage ends due to the death of one spouse, the duty of support transfers from the deceased spouse to their estate. This is, of course, assuming the estate has the resources to meet this obligation and the surviving spouse cannot cover their own maintenance needs from personal earnings. Therefore, it appears that individuals can choose to leave their spouses out of their wills, provided the surviving spouses can financially sustain themselves.

Reference list:
-In Hodges v Coubrough NO
-Section 2 of Act 27 of 1990
-Section 3 of Act 27 of 1990

Sinazo Mau-Mau is an Attorney at MBL Attorneys

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.

Related Expertise: Administration of Estates