Death of the Breadwinner and the Continuation of the Duty of Spousal Support: Discrepancies and Inequalities for Different Categories of Surviving Partners

Abstract

This note considers the extension of the duty of spousal support after the death of the breadwinner by comparing the rights of different categories of surviving maintenance claimants, who tend to be mostly women: widows of the deceased, unmarried intimate partners of the deceased and ex-wives and ex-partners of the deceased. Financial support can be provided from the deceased estate in the form of a right to share in the joint matrimonial estate, a right to intestate succession, a right to claim from the estate in terms of the Maintenance of Surviving Spouses Act and a right to claim for loss of support from third parties who who caused the death of the deceased breadwinner. Comparing different categories of women, it becomes clear that the law disproportionately benefits widows over other partners and that the rights of ex-spouses are being gradually eroded by the jurisprudence. There is also a discrepancy between rights to claim against deceased estates, which favours widows, on the one hand, and rights to claim against third parties, which is available to a far larger group of surviving maintenance claimants, on the other hand. The note analyses the gendered causes and consequences of these differences.