Family Allowance in Probate Court

When someone passes away (that person is called a “decedent”) and leaves behind a surviving spouse, minor child, and/or adult incapacitated children, those survivors may be entitled to receive a family allowance. The family allowance often comes up in cases where a decedent disinherited his or her spouse. Only the payment of funeral expenses and expenses of last illness up to $15,000.00 takes precedence over the payment of the family allowance.

The amount of the family allowance is an amount needed to support the spouse and children for the first year after the decedent passes away. However, if the surviving spouse or minor children have their own separate property that will support them, then they are not eligible to receive a family allowance. Additionally, if the decedent did not support the adult incapacitated child at the time the decedent passed away, then the court must not award support for that adult child.

Payment of the family allowance comes first from the community property owned jointly by the decedent and surviving spouse. If there is not enough community property to satisfy the amount of the family allowance, then the allowance may be paid from the decedent’s separate property estate.

In an independent administration, the independent executor determines the amount of the family allowance; in a dependent administration, the court determines the amount of the family allowance.