When does the obligations to pay maintenance to children, surviving spouse and/or former spouse end? This is a vital consideration often overlooked with estate planning and drafting of Wills.
Failure to make the necessary arrangements may lead to disputes over your estate.
According to South African law, parents are required to support their children until they are self-sufficient. That is, when they attain majority (the age of 18 years) or at a later stage – for example when tertiary studies are completed. It’s important to note that each case may be unique and would have to be dealt with based on the particular circumstances.
Maintenance obligation is applicable to children born from a marriage, children born outside of marriage and adopted children.
Ronel Williams, Chairperson of the Fiduciary Institute of Southern Africa (FISA) says, “During the lifetime of the parents, the burden of maintenance is divided between them according to their respective means. The death of one of the parents does not absolve him or her from this responsibility and the maintenance obligation will accrue to the estate.”
Even where a child inherited from the estate, the child may theoretically still have a maintenance claim against the estate if the inheritance is not sufficient.
It might be that the child gets a token amount or a percentage of the estate but that is not sufficient for the maintenance of the child going forward, considering all the items that could potentially fall under maintenance, adds Ronel.
A surviving spouse is also entitled to reasonable maintenance until death or remarriage if they cannot provide for themselves.
The amount available in the estate, the spouse’s means (including the inheritance and other benefits), earning capacity, financial needs and obligations, the duration of the marriage, age and living standard will be taken into account when considering the spouse’s maintenance needs.
Such a maintenance claim is usually settled by way of a lump sum payment from the estate to the surviving spouse. This can be a particularly thorny issue if the surviving spouse gets remarried, because the maintenance obligation would come to an end at that time, but the lump sum cannot be recovered. The surviving spouse and minor children rank equally as far as claims are concerned. Where there isn’t sufficient money to settle both the survivor’s claim and the dependent child’s claim in full, a pro-rata calculation will be done.
Even a divorcee may have a maintenance claim against a former spouse’s estate. Ronela says courts typically grant two types of maintenance orders in the case of divorce. The first order merely confirms the settlement agreement between the former spouses. In the absence of such a settlement, the court will make its own order.
Ronel says there are different court cases on the matter, but the general thinking seems to be that the obligation will also continue after the person’s death and that the estate will have to take over that obligation.
Individuals don’t necessarily plan for maintenance payments that may arise after their death, Ronel says.
“It does almost seem sometimes as if people think that the obligation dies with them.”
In practice, this means that a will is structured in a way as if there is no maintenance obligation. In the absence of such an obligation, the will may have been practical, but because maintenance payments take precedence over inheritance payments, it can change the whole landscape and may effectively render the will irrelevant.
Against this background, it is important that individuals consider any maintenance obligations that may arise after their death and do their estate planning accordingly with the help of a professional, Ronel says.
“The best way to ensure that all your maintenance requirements are complied with is by establishing a testamentary trust in terms of your will. The trust will come into operation after your death and can be used to house funds intended for your maintenance obligations.
“The mechanism is to bequeath a capital sum to the trust in terms of the will. The funds will be invested in order to generate income, which can be used to meet your maintenance obligations. One of the main advantages of using a trust for your maintenance obligations is that the capital is protected and preserved for your eventual heirs. The trustees will determine when a maintenance obligation would come to an end and deal with the assets the way the testator intended,” Ronel says.
Effect on estate planning
Maintenance orders against the deceased can significantly delay the finalisation of the deceased estate if proper provision has not been made in the Will. The deceased’s assets can be distributed to beneficiaries only once all creditors have been settled.
Although maintenance claims rank behind those of creditors when an estate is divided, they do take precedence over a testator’s inheritance. Lack of proper planning in this regard may have unintended consequences for your loved ones.
Disclaimer: The article is provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as financial /legal advice. An expert should be consulted for advice based on the facts and circumstances of each transaction/case.
The contributor (Kim Nokwaza) shall not be liable for any loss or damages suffered by anyone who relies on or acts upon the information contained in this piece.