Chapter 8 - Dissolution of a civil marriage by death

Question 1

Marriage in COP

Answer 1

The court need not be approached for an order dissolving either the marriage or the joint estate. An executor winds up the joint estate in terms of the Administration of Estates Act 66 of 1965

Question 2

Marriage out of COP

Answer 2

anc’s are not terminated by the death of either spouse. Therefore, any outstanding marriage settlements and pacta successoria must be implemented.

Question 3

Maintenance of Surviving Spouses Act 27 of 1990

Answer 3

The surviving spouse in the marriage which is dissolved by death after 1 July 1990 has a claim against the estate of the deceased spouse in respect of his or her reasonable maintenance until his or her death or remarriage.

Question 4

Reasonable maintenance needs

Answer 4

1. The amount available in the deceased estate for distribution to heirs and legatees
2. The existing and expected means, earning capacity, financial needs and obligations of the surviving spouse.
3. The duration of the marriage.
4. The surviving spouse’s standard of living during the subsistence of the marriage
5. The surviving spouse’s age at the time of the deceased’s death.
6. Any other relevant factor which should be taken into account.

Question 5

Disposal of the maintenance claim

Answer 5

The surviving spouse’s claim for maintenance must be proved and disposed of in terms of the Administration of Estates Act. This means that the claim must be lodged with the executor of the deceased estate.

Question 6

The order of preference

Answer 6

The surviving spouse’s maintenance claim has the same order of preference with respect of the claims against the deceased’s estate as that of a dependant child of the deceased spouse.