The duty to support a child terminates upon the child’s death but not the parent’s death. In the event of a parent’s death and if the Last Will and Testament do not adequately provide for maintenance, the child may lodge a claim for future or even retrospective maintenance against the deceased parent’s estate. A claim of this nature takes precedence over payments to heirs and legatees and the success of the claim does not depend on whether the parent’s estate is still intact or not. If the estate is intact, the claim will lie against the executor; once the estate has been wound up, the claim will lie against the heirs.
The duty of support out of a deceased estate is owed to both marital and extra-marital children.
There is furthermore a reciprocal duty of support between grandparents and grandchildren. However, support must first be sought from the nearest relative. This, in turn, may give rise to a duty of support from the deceased grandparent’s estate should the biological parent be unable to support the child.
Should you require assistance in launching a claim for maintenance against a deceased estate, please do not hesitate to contact our family law specialists at 041 363 6044 or info@kaplans.co.za for guidance and sound legal advice.
