Answer to a question from a reader

Can I take the allowance from my late husband’s estate as a lump sum instead of monthly payments?

The short answer

Yes, you can. The Supreme Court ruled that lump sum payments of deceased estates could be made in terms of the law.

The long answer

Yes, you can. In terms of the Maintenance of Surviving Spouses Act, 27 of 1990, it used to be the case that maintenance payments to the surviving spouse from a deceased estate could only be made as monthly payments. But in August 2010, the Supreme Court of Appeal overturned that ruling and said that lump sum payments could be made as well, in terms of the law. 

Section 2 (1) of the Maintenance of Surviving Spouses Act of 1990 says:

“If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of her reasonable maintenance needs until her death or remarriage in so far as she is not able to provide therefor from her own means and earnings.

The executor of the deceased estate, which includes all the property and money of your late husband, must work out how much the maintenance payment can be after all the debts have been paid. A surviving spouse has the same claim to maintenance as a minor child of the deceased.”

NGL Attorneys point out that what the executor of the deceased estate has to take into account when deciding how much the surviving spouse can claim from the estate, is the following, according to Section 3 of the Maintenance of Surviving Spouses Act:

  • “The amount of the estate of the deceased spouse available for distribution to heirs and legatees (if there was a will); 

  • The existing and expected means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage (how long the marriage lasted); and

  • The standard of living of the survivor during the marriage and her age at the death of the deceased spouse.”

Wishing you the best,

Answered on Sept. 5, 2023, 1:20 p.m.

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Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.