Estate Living Digital Publication Issue 3 March 2015 | Page 38

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INVESTMENT SAVVY

together with his or her own income,
is insufficient to maintain him/her to
the standard that the deceased might
have done.
“Our courts have decided that, where
a heterosexual couple merely live
together without the benefits and
obligations of marriage, the surviving
partner does not qualify as a spouse
and could, therefore, not claim
maintenance. On the other hand,
there is a decided case confirming
that the surviving partner in a same
sex relationship would be considered
a spouse. However, this case was
heard before the adoption of the Civil
Union Act in 2006 when it was not
permissible for same sex couples to

enter into a marriage-like arrangement Creditors, a divorced spouse entitled
– it would be interesting if that case to maintenance, a spouse married in
community of property who must take
were to be challenged now.”
his or her one half share, and any claim
“The computation of any maintenance for accrual in terms of the Matrimonial
claim either by a child, a dependant or Property Act must all be settled before
a surviving spouse is always the subject heirs to the estate may benefit. From
of negotiation by the claimant and the all of this, it is clear that one cannot
executor,” says Knott. “The executor is merely execute a will in haste before
duty bound to act in the best interests dashing off on holiday.
of the heirs to the estate and cannot,
therefore, merely accede to inflated “After assessing your situation objectively,
or unreasonable claims, whilst the one needs to consult with an expert
claimant is obviously seeking the best who is fully conversant with these
possible settlement. This negotiation is pitfalls, and many others,” warns Knott.
never easy, particularly where a second
marriage and second families might be www.privateclient.co.za
involved and the relationships are not
good.”