Not many people are aware of this, but Israeli law allows relatives who depended on the deceased for their livelihood before his death to continue receiving maintenance payments from his estate after his death.
The right to receive maintenance from the estate (often called an estate maintenance claim by foreign clients) is meant to keep the deceased’s relatives from falling into financial hardship, on top of the pain of losing him.
The provisions governing entitlement to maintenance payments from the estate appear in the fourth chapter of the Inheritance Law, 1965.
Under what circumstances can maintenance be paid from the estate?
Section 56 of the Inheritance Law provides that “where the deceased leaves a spouse, children, or parents who are in need of maintenance, they are entitled to maintenance out of the estate under the provisions of this chapter, whether the estate passes by law or under a will.”
In other words, the relatives entitled to receive maintenance payments from the deceased’s estate are the deceased’s spouse, children, and parents, provided they genuinely need these payments, as opposed to being able to support themselves independently, without any dependence on the deceased.
The right exists whether the deceased left no will, in which case his estate is distributed according to the law subject to the issuance of an inheritance order, or left a will, in which case his estate is distributed under its provisions subject to the issuance of a probate order.
What is more, if the deceased included a provision in his will denying or limiting his family members’ right to receive maintenance payments from his estate, that provision is void. So states Section 65(b) of the Inheritance Law.
The legislature took care to strengthen and fortify the right to maintenance from the estate in the following ways:
First, it provided that agreements about maintenance from the estate, or waivers of it, made during the deceased’s lifetime are void, and that if made after his death they require court approval (Section 65(a) of the Inheritance Law).
Second, it provided that the right to receive maintenance payments from the estate cannot be charged or attached, and in addition cannot be transferred or bequeathed to anyone else (Section 65(c) of the Inheritance Law).
Who is entitled to receive maintenance payments from the estate?
As stated, the relatives entitled to maintenance payments from the estate are the deceased’s spouse, children, and parents, but the scope of each one’s entitlement differs, as set out in Section 57 of the Inheritance Law.
The spouse’s entitlement to maintenance from the estate
The scope of a spouse’s entitlement to maintenance from the deceased’s estate depends on his or her status at the time of the death: married to the deceased, the deceased’s common-law partner, or in divorce proceedings with the deceased.
(1) A spouse who was married to the deceased at the time of death is entitled to maintenance from the estate for as long as he or she remains widowed, that is, does not remarry. Where a widow of the deceased has remarried, the court may approve a one-time grant from the estate, if it sees fit to do so in the circumstances of the case and taking into account the rights of the deceased’s children.
(2) A partner who was the deceased’s common-law spouse at the time of death, that is, lived with the deceased as a family and ran a joint household without their being married to each other, is entitled to maintenance from the estate as though they had been married, provided that at the time of the death neither of them was married to someone else.
(3) A spouse who was in divorce proceedings with the deceased at the time of death is not entitled to maintenance payments from the estate if his or her right to maintenance from the deceased was denied by a judgment or decision during the deceased’s lifetime, before his death.
The children’s entitlement to maintenance payments from the estate
The right to maintenance from the estate extends to all of the deceased’s children, including an adopted child, a child born only after the deceased’s death, and a child born out of wedlock, and even to a grandchild of the deceased who was orphaned before the deceased’s death, or whose support the deceased carried until his death and whose parents cannot provide for him.
All of the deceased’s children are entitled to maintenance from his estate until they reach the age of 18. Past that age, they may continue to receive it only if the court determines that, in the circumstances of the case, it is appropriate to award maintenance beyond age 18, in which case they are entitled to receive it until they reach the age of 23.
However, disabled children of the deceased are entitled to maintenance from his estate for as long as their disability lasts, mentally ill children for as long as their illness lasts, and children with intellectual and developmental disabilities in accordance with the Welfare Law (Care of People with Intellectual and Developmental Disabilities), 1969.
The parents’ entitlement to maintenance payments from the estate
Parents whose livelihood the deceased provided until his death are entitled to receive maintenance from his estate for the rest of their lives.
What do I need to do to receive maintenance payments from the estate?
Section 60(a) of the Inheritance Law provides that to receive maintenance payments from the estate, a written application must be filed with the Family Court, and before the estate is distributed. The court may, however, accept an application up to 6 months after the distribution of the estate, provided the applicant proves circumstances that justify the delay (Section 60(a) of the Inheritance Law).
How is the amount of maintenance from the estate determined?
The amount of the maintenance payment from the estate is determined by the court, according to the specific circumstances of each individual case and at the court’s sole discretion.
This means that if, for example, the deceased had an agreement with his ex-wife to pay child support for his children, the court will not necessarily award the children that same amount after his death; it will examine all the circumstances of the case before it afresh.
To that end, the court must consider, among other things, the circumstances listed in Section 59 of the Inheritance Law:
- The value of the estate.
- What the person entitled to maintenance may receive from the estate, whether as an heir at law or as a beneficiary under a will.
- The standard of living the deceased and the person entitled to maintenance had at the time of the deceased’s death, and the change in the entitled person’s needs brought about by the death.
- The extent of the entitled person’s property.
- The entitled person’s income from any source, provided that with regard to the deceased’s spouse, the court will not consider income from his or her work or business except to the extent that such income was used, before the death, to support the family or the spouse.
- Maintenance the entitled person may receive under Sections 2 or 3 of the Family Law Amendment (Maintenance) Law, 5719-1959.
- With regard to the deceased’s spouse, what he or she is entitled to on grounds arising from the marital relationship, including what the wife receives under her ketubah.
How is maintenance from the estate paid?
Section 61(a) of the Inheritance Law provides that the court may order the maintenance paid either in a lump sum or in installments.
From when is maintenance from the estate paid?
The court may rule that the maintenance payments apply retroactively from the deceased’s death, and may even award temporary maintenance from the estate until the application is decided. So provides Section 60(b) of the Inheritance Law.
