The Decedent’s surviving spouse and minor children can request the Court grant them a “family allowance” that is sufficient to maintain them for a period of one year after the Decedent’s date of death. The family allowance is typically sought immediately after the inventory, appraisement, and list of claims has been approved. In a dependent administration, application is typically made to the court. In an independent administration, the executor usually sets the family allowance. Once the inventory, appraisement, and list of claims is approved, the court loses jurisdiction over the estate in an independent administration. In that case, if the independent executor is not cooperative, the applicant can fue suit against the independent executor to collect the allowance.
The family allowance takes precedence over almost all other claims, except those for funeral expenses and expenses of last sickness up to $15,000 and secured creditors. The allowance “shall be in an amount sufficient for the maintenance of the surviving spouse and minor children (and an adult incapacitated person) for one year from the time of death.” The allowance is based on the circumstances then existing and those anticipated to exist during the fust year after death. The court must consider the amount of the surviving spouse’s separate property that could be used for his or her support and maintenance. If the surviving spouse has adequate separate property, a family allowance should not be allowed.
The family allowance is paid entirely out of the Decedent’s estate-primarily the Decedent’s one-half community estate. Property specifically devised or bequeathed to another may be taken or sold to raise funds for the allowance only if other available property is insufficient to provide for the allowance. It is important to note that the allowance is not treated as an advancement to be offset against future estate distributions-rather it is a sum of money literally “carved out” of the estate. The family allowance is often utilized in cases of second marriages, especially where the Decedent did not adequately make provisions for his or her surviving spouse (usually because the Decedent left the majority of his estate to children from a prior marriage).