What is a Maintenance Claim Against a Deceased Estate in South Africa?

A maintenance claim against a deceased estate in South Africa is a demand for financial support made against the estate of a person who has died — most commonly by a surviving spouse under the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA), or by a child of the deceased under the common-law duty of support combined with section 7 of the Intestate Succession Act 81 of 1987. The MSSA gives the surviving spouse a claim for reasonable maintenance out of the estate that ranks above the heirs’ inheritances; the children’s claim is weighed by the Master of the High Court when the Liquidation and Distribution Account is lodged, and on objection by the High Court. The Gauteng Division of the High Court, sitting in Pretoria, confirmed the current position in L.L v A.J.M and Others (014357/2022) [2024] ZAGPPHC 523, holding that a maintenance claim can lie against a deceased estate without the claimant first proving they are wholly unable to maintain themselves.

What “Maintenance Against a Deceased Estate” Actually Means

A maintenance claim against a deceased estate is a demand for financial support made against the estate of a person who has died — not against another living person. The claim presupposes that an obligation to maintain the claimant existed during the deceased’s lifetime, and that the claimant needs recourse against the estate after death because that obligation can no longer be met by the deceased personally.

Two distinct legal tracks run in parallel:

• The surviving-spouse track under the MSSA, governed by sections 2 to 6 of that Act.
• The children’s track under the common-law duty of support, applied through section 7(2) of the Intestate Succession Act and the Master’s process under the Administration of Estates Act 66 of 1965.

Both tracks sit within the broader estate-administration process governed by the Administration of Estates Act 66 of 1965. The Master’s office runs the estate; the High Court adjudicates disputes. The Magistrate’s Court (in its maintenance jurisdiction under the Maintenance Act 99 of 1998) is not the correct forum for a claim against a deceased estate — that procedure is for disputes between living parties.

The Surviving-Spouse Track — Maintenance of Surviving Spouses Act 27 of 1990

The MSSA is the controlling statute for a surviving spouse’s claim against a deceased estate. Its operative provisions are short and tightly drafted:

Section	What it does
Section 2	Entitles the surviving spouse to claim reasonable maintenance out of the estate, first by lodging a written claim with the executor and, failing agreement, by applying to the court.
Section 3	Sets the test: the court considers the surviving spouse’s own means and earning capacity, the deceased’s means at death, the standard of living the couple enjoyed, and the size of the estate.
Section 4	Allows the court to direct a lump-sum payment in lieu of periodic maintenance where appropriate.
Section 5	Gives the maintenance claim preference over the heirs’ claims — maintenance is paid out of the estate before inheritances are distributed.
Section 6	Confirms that the marriage regime is irrelevant — the MSSA applies whether the marriage was in or out of community of property, with or without the accrual system.

Because section 6 disconnects the claim from the matrimonial property system, an MSSA claim is available to spouses who married out of community of property without the accrual and who would otherwise receive no maintenance because no accrual share accrues to them on death.

The Children’s Track — Duty of Support and the Intestate Succession Act

The common-law duty of parents to maintain their children does not die with the parent. It continues as a claim against the deceased’s estate, and the High Court will enforce it where the will or the intestate distribution would otherwise leave a child without adequate provision.

• Section 7(2) of the Intestate Succession Act 81 of 1987 requires the Master, and on objection the High Court, to weigh the children’s maintenance needs before approving the Liquidation and Distribution Account of an intestate estate.
• Testamentary freedom is not absolute: where the deceased left a will that fails to provide adequately for minor or dependent children, the duty of support can still be invoked against the estate.
• Who may raise it: a guardian, a parent, or the child themselves (once a major) may lodge the claim.
• What the court weighs: the size of the estate, the child’s age and circumstances, the surviving parent’s means, and the pre-death standard of living.

Where a claim is contested by the heirs or by an executor who understates it, the claimant may lodge an objection under section 33 of the Administration of Estates Act and proceed to the High Court for determination.

The Process — From Claim to Payment

The exact route depends on whether the claimant is a surviving spouse or a child, and whether the claim is opposed. In broad terms:

1. Identify the correct Master’s office. The Master’s office serving the district where the deceased was ordinarily resident at death is the first administrative point.
2. Lodge the claim with the executor. The surviving spouse lodges a written claim with the executor within the time bar set by the MSSA; a child’s maintenance need is raised through the Liquidation and Distribution Account process.
3. Negotiate, or default to litigation. If the executor agrees, the maintenance is reflected in the Liquidation and Distribution Account. Failing agreement, the surviving spouse launches a section 2 application in the High Court division with jurisdiction over that Master’s office.
4. Master considers the children’s track. The Master weighs the children’s maintenance needs before signing off the Liquidation and Distribution Account of an intestate estate.
5. Object if the claim is refused or understated. A claimant may lodge an objection under section 33 of the Administration of Estates Act and proceed to the High Court.
6. Payment follows the order. Once an order is obtained, the maintenance is paid out of the estate before the heirs receive their inheritances — under section 5 of the MSSA for spouses, by virtue of the distribution order for children.

Burger Huyser Attorneys’ Family Law and Wills & Estates practices handle steps 1 to 6 from the firm’s Linden head office and across its Gauteng branches, with Director and Head of Family Law Anna-Mi Nel acting as the natural first-line contact where the claim is disputed.

What the Court Looks At — The “Reasonable Maintenance” Test

Whether the claim is brought under the MSSA or under the children’s track, the court’s enquiry is fact-specific and not formulaic. The recurring factors are:

• The claimant’s own means and earning capacity — the claim is supplementary, not a windfall.
• The pre-death standard of living — the claim aims to prevent destitution, not to enrich.
• The size and liquidity of the estate — the estate must actually be able to pay.
• The competing interests of the heirs — the MSSA ranks maintenance above inheritances, but the court still weighs practical fairness.
• The marriage regime — irrelevant under the MSSA; under common law, relevant only as it explains the surviving spouse’s own resources.

In L.L v A.J.M and Others (014357/2022) [2024] ZAGPPHC 523, the Gauteng Division (Pretoria) dismissed the defendants’ exception to the particulars of claim and held that a maintenance claim can lie against a deceased estate without the claimant first proving she is unable to maintain the minor children. The court declined to follow earlier authorities (including decisions reported under the Ritchken and Goldman NO lines of cases) that suggested the surviving parent had to be wholly unable to support the child before claiming against the estate. The judgment confirms that, in current practice, maintenance is allocated between the surviving parent and the deceased estate according to their respective means.

Where the Claim Files — Master’s Office and High Court

The two institutions that matter are the Master of the High Court and the High Court itself. They are not interchangeable.

Institution	Role in a maintenance-against-estate claim
Master of the High Court (regional offices nationwide)	Administers the deceased estate and signs off the Liquidation and Distribution Account. The Master’s office for the district where the deceased was ordinarily resident at death is the first stop.
High Court	Adjudicates disputed claims — under section 2 of the MSSA for a surviving spouse, or on objection under section 33 of the Administration of Estates Act for any claimant. Filed in the division having jurisdiction over the relevant Master’s office.
Magistrate’s Court (Maintenance Court)	Does not adjudicate maintenance-against-estate claims. Magistrate’s-court maintenance under the Maintenance Act 99 of 1998 is a separate process between living parties.

A common confusion is that a Magistrate’s Court is the correct venue because maintenance is otherwise associated with the Maintenance Act 99 of 1998. It is not. The Administration of Estates Act 66 of 1965 governs the Master’s process, the MSSA governs the spouse-track claim, and the Intestate Succession Act 81 of 1987 governs how a child’s maintenance needs are weighed against the heirs’ inheritances in intestate estates.

How Maintenance Claims Interact With Other Estate Claims

A maintenance-against-estate claim is not the only way an estate can be reduced. Practitioners and claimants should keep the following distinctions clear:

• Preference over heirs: section 5 of the MSSA gives the surviving spouse’s maintenance claim preference over the heirs’ claims. The children’s maintenance need is a weighty factor in the Master’s distribution process, although it does not carry the same statutory preference as a spousal claim.
• Pre-existing maintenance orders: existing maintenance orders against the deceased at the time of death (for example, in favour of a former spouse or child) continue against the estate under the ordinary maintenance-enforcement framework and are not “new” maintenance-against-estate claims.
• Section 9 Divorce Act claims: post-divorce maintenance variation under section 9 of the Divorce Act 70 of 1979 is a different procedure and runs against the former spouse personally, not against the deceased estate.
• Disinherited-heir claims: a claim under section 9 of the Intestate Succession Act by a child who has been disinherited by will is a separate statutory remedy, although the two may overlap in evidence.

The firm’s Family Law and Wills & Estates practices act in this area from the Linden head office (49 First Avenue, Linden, Randburg, 011 888 0246) and across its Gauteng branches. Anna-Mi Nel, Director and Head of the Family Law Department, has a working specialisation in deceased estates and High Court litigation and is the natural first-line contact where the claim is disputed or contested by the heirs.

If you are facing an actual maintenance claim against a deceased estate — whether you are a surviving spouse, a guardian acting on behalf of minor children, or an executor who has received such a claim and needs to respond — Burger Huyser Attorneys can assist from its Family Law and Wills & Estates practices. The firm’s Director and Head of Family Law, Anna-Mi Nel, has a working specialisation in deceased estates and High Court litigation and is the natural first-line contact. Start with the Linden head office (49 First Avenue, Linden, Randburg, 011 888 0246) or the branch nearest to you: Centurion (012 644 4990), Pretoria/Menlyn (012 471 5700), Sandton (011 253 3080), Bedfordview (011 201 7190), Alberton (011 439 3990), Roodepoort (011 668 0030), or Midrand (010 022 4082). The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and acts across Gauteng.

Frequently Asked Questions

What is a maintenance claim against a deceased estate in South Africa?

A maintenance claim against a deceased estate is a demand for financial support made against the estate of a person who has died — typically by a surviving spouse under the Maintenance of Surviving Spouses Act 27 of 1990, or by a child of the deceased under the common-law duty of support combined with the Intestate Succession Act 81 of 1987. The claim is paid out of the estate before the heirs receive their inheritances.

Who can claim maintenance from a deceased estate?

A surviving spouse (under the MSSA) and the deceased’s children (under the common-law duty of support and section 7 of the Intestate Succession Act). Adult children who were being supported at the time of death may have a more limited claim depending on the facts and the size of the estate. Life partners are a more complex sub-category, and the position depends on whether a permanent life-partnership can be established.

How long does a surviving spouse have to claim maintenance from the estate?

The MSSA imposes a strict time bar on section 2 applications — the surviving spouse must institute the claim within the prescribed period after death. Late applications require condonation. The Maintenance of Surviving Spouses Act 27 of 1990 is the controlling statute.

Does the claim have preference over the heirs?

Yes. Section 5 of the Maintenance of Surviving Spouses Act gives a surviving spouse’s maintenance claim preference over the heirs’ claims against the estate. The maintenance is paid out first, before inheritances are distributed.

Does the marriage regime affect the claim?

No. Section 6 of the MSSA applies the Act regardless of the marriage regime — a marriage out of community of property, with or without the accrual system, does not disqualify the surviving spouse from claiming.

Where is the claim filed?

First with the executor of the estate. If the executor does not agree or fails to act, the surviving spouse applies to the High Court under section 2 of the MSSA in the division having jurisdiction over the Master’s office where the estate is being administered. The Master of the High Court is the central administrative point; the High Court adjudicates disputes.

Can a child’s maintenance be claimed if the deceased left a will?

Yes. The common-law duty of support is not overridden by a will. Where the deceased left a will that makes insufficient provision for minor or dependent children, the maintenance claim can still be raised against the estate and considered before distribution.

What factors does the court consider?

The claimant’s own means and earning capacity, the deceased’s means at death, the standard of living the family enjoyed, the size and liquidity of the estate, and the competing interests of the heirs. The claim is for reasonable maintenance, not for a windfall.