When a spouse dies it is never an easy process and there are suddenly a great number of things that need to be addressed in addition to dealing with the grieving process. Being married in or out of community of property becomes applicable, whether the deceased spouse has a will or not is also very important as it details who is to inherit and in what manner. If a deceased leaves behind a spouse as well as minor children, things can become even more challenging. There are a great number of laws and variables that can influence events after the death of a spouse including the responsibilities of the surviving spouse and the maintenance due to the children. For the sake of this blog, we will assume that the parents of the child were married or in a permanent civil partnership and living together and that they were the biological/legal parents of the child.

What happens after the parent of a minor dies?

The surviving spouse becomes the legal guardian of the child. In its most basic form, that is the law. There are situations in which the surviving spouse will not be the child’s guardian, but preference will first be given to the parent. The surviving spouse (parent) is completely responsible for the child as per the Children’s Act of 2005 which requires of a parent to care for a child, maintain contact with the child, act as guardian of the child, and contribute to the maintenance of the child. That contribution can come to rest squarely on the shoulders of the surviving spouse. Here is a very important point though, when a parent dies, their parental responsibilities don’t die with them. Parental responsibilities for a dependent child only falls away upon the death of said child. A dependent child is not just a minor and if the child is older than 18 but still require support from the parent (for example the parent claimed responsibility for tertiary education fees), the child can still claim support from the deceased parent’s estate.

How can the deceased estate help support the surviving spouse and child(ren)?

Before any inheritance claims or payments can be addressed, the debt of a deceased estate is paid. The creditors will always be paid first. Thereafter the beneficiaries of the will can be dealt with or, in the absence of a will, according to the Intestate Succession Act. The care of a minor child will receive preference and even if a will did not make provision for it, the child’s claim to maintenance will still outrank any other inheritance claim.

It could be that there is no cash in the estate to cover the child’s maintenance. In such a situation, assets could be sold off to cover these costs. It could also be that there is no money in the estate at all after all the formalities have been concluded, cash or otherwise. This could cause some problems for the maintenance of the child and it becomes the sole responsibility of the surviving parent.

What is the surviving spouse responsible for?

As far as the minor is concerned, the surviving spouse is responsible for everything involving the maintenance of the child as we have already discussed. This includes school fees. As per the South African Schools Act of 1996, all children between the ages of 7 and 15 have to attend school and the parent must ensure that this happens.

What to do if the payment of school fees cannot be made?

If the death of a spouse leaves the surviving spouse in a financial bind (or worse) there are options available to them. The parent has to approach the School Governing Body (of a public school) and apply for conditional, partial, or full exemption from paying school fees. If the criteria for exemption are met, the parent can pay the adjusted school fee (or possibly no fee). We strongly encourage any surviving spouse to take this course of action as a public school has the right to take legal action against parents that do not pay school fees. This is only true if the exemption criteria have been applied and the parent is still liable to pay school fees. Note, though, that a learner cannot be excluded from participating in the official school programme due to the parent’s non-payment of school fees, nor can their reports be withheld. These stipulations do not apply to private schools and these schools could suspend a learner if the parent fails to pay school fees. The surviving parent could request to make an arrangement with the school to allow for the continued education of his or her child or they will need to consider moving the child to a public school.

There are many things that a surviving spouse can be left to worry about upon the death of his/her partner. Having attorneys on your side that will truly listen and explain what is happening in the simplest terms can make the legal side of things much easier and leave you to focus on your family. Get in touch with AED Attorneys when you need assistance with a personal touch.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.