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Maintenance post death of spouse


Taking out life insurance to secure lifelong maintenance or maintenance until death from your spouse. Including situations in which the spouse paying out the maintenance has passed on, while the receiving spouse is still alive.

I had a client who consulted me whose husband was very well off. She had seen his will and was not happy with what she would be inheriting in terms of the will if he passed away. It was his second marriage and he had two children from the first wife, whom he had divorced. 

In terms of the will of my client’s husband, the two children from the first marriage would be inheriting about 80% of the assets, and my client would only be inheriting 20% of the assets. She was contemplating divorcing him, and wanted a part of the divorce settlement agreement to state that he would pay her R20 000 maintenance per month until her death, and that provision would be made in his will for this should anything happen to him. She further wanted a clause that his trust would pay this monthly maintenance until her death, should her husband die before her.

South African Law follows the principle of freedom of testation. You are allowed to leave whatever you want to whomever you want and nobody can force you to do otherwise. You can therefore not have a clause in a divorce settlement agreement compelling somebody to leave a certain amount of money to you in their will. In the above case the man had been supporting my client throughout the course of the marriage. If he had left nothing to his wife in the will, she would have the right to institute a claim against his estate by virtue of the Maintenance of Surviving Spouses Act. I advised my client that the marriage had only been for five years, and that I did not believe that any court would award her maintenance until her death.

Clients very often when they are awarded rehabilitation or lifelong maintenance or maintenance until their death, remarriage or cohabitation ask me how their rights will be protected in the event of their soon to be ex-spouse passing away before them. In this kind of case I would insist that a life insurance policy is taken out protecting my client. A common clause in such a divorce consent paper would read as follows:

“1.    As security for Defendant’s maintenance obligations as set out above, Defendant shall ensure that Plaintiff is stipulated as the beneficiary, of his life insurance.
2.     Defendant shall provide Plaintiff with proof of the aforesaid, within 30-days after the granting of the final order of divorce.
3.     When Defendant’s maintenance obligations have been terminated, the obligation to stipulate the Plaintiff as a beneficiary to Defendant’s life cover as set out in paragraph 1. herein before, shall automatically lapse, when Defendant’s maintenance obligation towards the Plaintiff comes to an end.”

One cannot force their soon-to-be-ex-spouse in a divorce matter to take our life insurance. It can however be a deal-breaker in the settlement discussions, particularly when the party who has to pay the maintenance is quite old and has medical problems and has supported the other party throughout his or her life. When I am representing a party who is entitled to lifelong maintenance I usually insist on the other party agreeing to a life insurance policy being taken out.

The reality of the matter is that everybody eventually dies. It is important to protect yourself by insisting on a life insurance policy. Life insurance companies normally pay out directly to the beneficiary when somebody dies, no matter what the deceased’s will states.

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