How to claim maintenance from a deceased estate
By Shephard Dube, LLB · 8 min read · ·
A surviving spouse can claim reasonable maintenance from the estate under the Maintenance of Surviving Spouses Act, and a child's maintenance claim against a parent survives death. Both exist whatever the will says. You lodge the claim in writing with the executor, and if it is rejected a court decides.
Key points
- A surviving spouse can claim reasonable maintenance until death or remarriage under the Maintenance of Surviving Spouses Act 27 of 1990.
- A child's claim for maintenance against a parent survives the parent's death and is lodged against the estate.
- Both claims exist whether or not there is a will, and whether or not the will provides for you.
- The claim is lodged in writing with the executor. If the executor rejects it, a court decides.
- The claim is paid after creditors but before heirs, and a spouse's claim and a child's claim rank equally if the estate cannot cover both.
If someone who was supporting you has died, you may be able to claim maintenance from their deceased estate. Two claims exist. A surviving spouse can claim reasonable maintenance under the Maintenance of Surviving Spouses Act 27 of 1990, until death or remarriage, to the extent that they cannot support themselves from their own means and earnings. A child can claim maintenance from a parent's estate, because a parent's duty to support a child survives the parent's death. Both claims exist whether or not there is a will, and whether or not the will mentions you. You lodge the claim in writing with the executor. If the executor rejects it, a court decides.
Who can claim
A surviving spouse. This covers a spouse under a civil marriage, a customary marriage and a civil union. The courts have extended the protection to a surviving partner in a permanent life partnership in which the partners undertook reciprocal duties of support, and the law has been changed to reflect this. If you were not married, get advice on how the current wording applies to your relationship.
A child of the deceased. Minor children have a clear claim. A child over 18 who is still dependent, for example a student or a person with a disability, can also claim, because the duty of support continues for as long as the child genuinely cannot support themselves. The Children's Act 38 of 2005 sets out parental responsibilities generally, but the claim against an estate rests on the common law duty of support that outlives the parent. It applies equally to children born outside marriage and to adopted children.
A person with an existing maintenance order. If a court had ordered the deceased to pay maintenance under the Maintenance Act 99 of 1998, or in a divorce order, the arrears owed at death are a debt of the estate, and the future obligation is claimed as maintenance against the estate.
Not covered. Parents, siblings and other relatives generally have no maintenance claim against an estate, even if the deceased was supporting them.
What a surviving spouse can claim
The Act gives a surviving spouse a claim for reasonable maintenance until death or remarriage, so far as the survivor cannot provide for their own reasonable maintenance from their own means and earnings. The words matter. It is not a claim for a share of the estate, and it is not a claim to keep the standard of living you enjoyed unchanged. It is a claim for what you reasonably need that you cannot provide yourself.
The executor and, if necessary, the court look at:
- the amount available in the estate for distribution to heirs and legatees
- your existing and expected means, earning capacity, financial needs and obligations
- the standard of living during the marriage
- how long the marriage lasted
- your age at the death
- any other relevant factor
The claim ranks after the estate's creditors but before the heirs. If the estate cannot cover both a spouse's claim and a dependent child's claim in full, the two rank equally and are reduced in proportion. A spouse who already inherits enough under the will or on intestacy to be maintained has no further claim.
The executor may settle the claim by a lump sum, by periodic payments, by transferring an asset, or by giving the spouse a right to live in the house. A lump sum is common because it lets the estate close.
How to lodge the claim, step by step
- Find out who the executor is. The Master's office can tell you once the estate is reported. If nobody has reported it, read how to report a deceased estate to the Master.
- Write to the executor stating that you are lodging a claim for maintenance, under which Act or duty, and in what amount. Attach a budget of your monthly needs and proof of your income and assets.
- Do it early. Ideally within the period in which creditors are invited to lodge claims, after the executor advertises the estate. A claim lodged late can still be considered before the account is confirmed, but the executor is entitled to press on.
- Negotiate. The executor may accept the claim, offer a lower amount, or reject it. Most claims settle at this stage.
- If rejected, apply to court. The court decides whether you have a claim and how much. The executor should not distribute the contested portion until the court has ruled.
- The claim goes into the liquidation and distribution account and is paid when the account is confirmed by the Master.
Objecting to the liquidation and distribution account during its inspection period at the Master's office is a separate safeguard if the executor has left your claim out.
A worked example
The figures are illustrative.
Zanele is 61. She was married to Bongani for 28 years and stopped working two decades ago to raise the family. Bongani's will, made before the marriage and never updated, leaves his whole estate to his two children from an earlier relationship. The estate, after debts and costs, is worth R3 400 000, most of it the family home and an investment. Zanele has R180 000 in savings, a small pension of R2 800 a month and no other income. Her reasonable monthly needs come to R11 500.
She writes to the executor within the creditors' period, lodging a claim under the Maintenance of Surviving Spouses Act. She attaches a budget, her bank statements and her pension statement. The shortfall is R8 700 a month. The executor, weighing her age, the length of the marriage and the size of the estate, proposes a lump sum of R1 300 000 plus a lifelong right to live in the house, with the house passing to the children on her death. The children object at first, but after advice they accept, because a court fight would freeze the estate for two years and the costs would come from the same money. The account is drawn on that basis and confirmed.
Had Zanele done nothing, she would have received nothing.
What to do this week
- Confirm that the estate has been reported and get the executor's details from the Master.
- Write a monthly budget of your reasonable needs, itemised, with proof where you can.
- List your own income and assets honestly. The claim is only for the shortfall.
- Send the executor a written claim by email and by hand, and keep proof.
- If you have children with the deceased, lodge their claim too, as their guardian.
- Get a legal opinion on the likely range. See what wills and estates work costs.
Documents to gather
Your marriage certificate or proof of the customary marriage or life partnership, the death certificate, your ID, a budget of your monthly expenses, three to six months of bank statements, proof of your income, your pension or retirement fund statements, a list of your assets with values, any divorce order or maintenance order involving the deceased, children's birth certificates and school fee accounts, and proof of any medical needs.
Realistic timeline
The executor advertises for creditors after appointment, which is usually within a few weeks of the estate being reported. A claim lodged then is dealt with when the executor draws the account, commonly several months after death. A negotiated settlement can be recorded in the account and paid on confirmation, which in a simple estate is within about a year. A claim that goes to court adds a year or more. Read how long it takes to wind up a deceased estate for the surrounding steps.
Ask the executor for interim maintenance if you have no income in the meantime. Executors can make reasonable interim payments to a dependent spouse or child in appropriate cases, and the Master can be approached if the executor refuses.
Common mistakes and what they cost
- Assuming the will is the last word. Spouses who accept a will that leaves them out lose a claim that could be worth a large part of the estate.
- Lodging late. If the account has been confirmed and paid out, you are suing individual heirs.
- Overstating the need. An inflated budget damages credibility with the executor and the court, and costs orders follow.
- Not lodging the children's claim. A guardian who claims only for herself leaves the children's separate claim on the table.
- Contesting the will instead. A validity challenge is expensive and uncertain. A maintenance claim does not require the will to fall. Read can a will be contested.
If you cannot afford an attorney
The claim is lodged with the executor first, and you need no lawyer to write that letter. The Master's office deals directly with the public and will tell you who the executor is and where the estate stands. In a small estate wound up under section 18(3) of the Administration of Estates Act 66 of 1965, where the Master issues letters of authority rather than appointing a full executor, raise the claim with the person holding the letters and with the Master. Legal Aid South Africa on 0800 110 110 applies a means test and assists in some maintenance and estate matters. University law clinics take these cases for people who qualify. A claim against an estate is not brought in the maintenance court, which deals with orders against living people, but arrears owed under an existing order at the date of death are lodged with the executor as a debt. See our legal aid page.
Frequently asked questions
People ask whether a spouse married out of community of property can claim. Yes. The claim does not depend on the marriage regime. A spouse married with accrual may also have an accrual claim, which is a separate debt of the estate, and the executor takes it into account when considering how much maintenance is needed.
People ask whether remarrying ends the claim. The spouse's claim runs until death or remarriage, so a lump sum already paid is not returned, but periodic payments stop.
People ask whether an adult child can claim. Only if genuinely dependent, for example still studying or living with a disability. A capable adult child has no claim.
People ask whether the estate must sell the house. Not necessarily. The executor can agree that the spouse lives in the house for life, or that the house is transferred in satisfaction of the claim, if the estate's other obligations allow it.
What it typically costs
Updated Oct 2026| Item | Typical range |
|---|---|
| Drafting a simple will Banks and trust companies often draft for free if you appoint them as executor. Attorneys charge a fixed fee for a simple will. | R0 – R3 500 |
| Drafting a will with a testamentary trust or business provisions More clauses, more consultation time. Foreign assets or a farm push it to the top of the range. | R3 500 – R15 000 |
| Attorney as executor, fixed or capped fee on a simple estate What attorneys commonly agree in place of the full tariff on an uncomplicated estate. Always confirm in writing. | R15 000 – R60 000 |
| Executor's remuneration at the regulated tariff, estate of R1 million to R3 million The regulated fee is 3.5% of gross assets plus 6% of income earned after death, plus VAT if the executor is registered. The Master may reduce it and a will can fix a lower fee. | R35 000 – R105 000 |
| Master's fees on the estate A sliding scale set by regulation based on the gross value of the estate. Nothing is payable on small estates. The scale changes, so check the current figure. | R0 – R7 000 |
| Advertising for creditors and the account lying open Two notices in the Government Gazette and two in a local newspaper. Metropolitan newspapers cost more. | R1 500 – R5 000 |
| Conveyancing of inherited property to an heir Conveyancer's fee plus deeds office fees and clearance certificates. Inheritance transfers are exempt from transfer duty. | R8 000 – R40 000 |
| Redistribution agreement between heirs Drafting the agreement that lets one heir take the house and others take cash or other assets. | R3 500 – R15 000 |
| Contesting or defending a will in the High Court Opposed application with counsel. A trial with expert evidence on capacity or undue influence sits at the top. Costs orders are a real risk. | R80 000 – R500 000 |
Estimates only. Actual fees vary by attorney and complexity.
When you need an attorney
You should speak to an attorney if:
- the executor has rejected your maintenance claim or is ignoring it and is preparing to distribute
- you were in a permanent life partnership rather than a marriage and need to confirm your standing
- the estate includes a business, a farm or property that must be sold to meet the claim
- the heirs are contesting the amount and a court application looks likely
Frequently asked questions
Can I claim maintenance if the will leaves me nothing?
Where do I lodge the claim?
How much can a surviving spouse claim?
Can a child over 18 claim from a parent's estate?
What if there is not enough in the estate for both the spouse and the children?
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