In terms of our common law a surviving spouse, merely by reason of the marriage, has no claim for maintenance against the estate of her deceased spouse. Because in South Africa we have almost total freedom of testation, many surviving spouses have been left in penurious circumstances.  The legislature addressed the plight of disinherited surviving spouses when it passed the Maintenance of Surviving Spouses Act, Act 27 of 1990.

The purpose of the Act is to provide relief for a vulnerable section of the population, i.e. widows and includes parties to a Muslim marriage and surviving partners in a permanent life partnership.

The surviving spouse in a marriage which is dissolved by death has a claim for maintenance against the estate of her deceased spouse in respect of her reasonable maintenance needs, in so far as the surviving spouse is unable to provide for her reasonable maintenance needs from her own means and earnings.

In the determination of the reasonable maintenance needs of the survivor, the following factors will be taken into account.

1. The amount in the estate of the deceased spouse available for distribution to heirs and legatees;
2. The existing and expected means, earning capacity, financial needs and obligations of the survivor;
3. The subsistence of the marriage;
4. The standard of living of the survivor during the subsistence of the marriage;
5. The age of the survivor at the death of the deceased spouse.

Any own means of the survivor should be taken into account in determining her ability to meet her own reasonable maintenance needs and includes money or property. 

It is not without significance that the maintenance obligation contemplated in both Section 2(1) and Section 3 of the Maintenance of Surviving Spouses Act, qualifies the maintenance needs with the word “reasonable”.  This indicates a more restrictive or conservative approach to the determination of maintenance for surviving spouses and would be consistent with the intention of the legislature to limit unnecessary interference with the pre-existing common law position.