Separated spouses may claim maintenance

Spouses who were separated at the time of the death of a spouse may also rely on the Maintenance of the Surviving Spouse Act 27 of 1990 (MSSA) in certain circumstances.

Under the Act, a surviving spouse who was separated from the deceased spouse, but who is not legally divorced may be entitled to maintenance if:

• The deceased spouse was legally responsible for maintaining the surviving spouse at the time of their death; and
• The surviving spouse is unable to support themselves from their own means or from any estate left by the deceased spouse.

In the 2018 Gauteng High Court case of Dadoo v Dadoo, the deceased husband had left a will in which he did not provide for his estranged wife. The wife argued that she was entitled to maintenance under the MSSA. The court held that the fact that the couple was separated did not automatically disqualify the wife from claiming maintenance under the Act. The court found that the wife had a claim for maintenance under the Act because she had been married to the deceased at the time of his death.

In determining whether a surviving spouse who was separated from the deceased spouse is entitled to maintenance, the court will consider the specific circumstances of the case, including the length of the separation, the financial circumstances of the surviving spouse and the deceased spouse, and any other relevant factors.

It is important to note that each case will be decided on its own merits, and there is no automatic entitlement to maintenance under the Act.

It is recommended to seek the advice of legal professionals such as Julies Attorneys, if you are a surviving spouse who was separated from the deceased spouse and believe you may be entitled to maintenance from the deceased estate.

Consult Julies Attorneys’ specialist divorce lawyers in Johannesburg for legal advice on the specific circumstances of your case and to plan the best course of action.