The family allowance is paid from estate funds to the surviving spouse and sometimes to other qualified dependents. In most estates, the allowance is not a factor because all or most of the estate goes to the surviving spouse. The spousal allowance usually comes up in a multiple marriage situation where a will cuts out the surviving spouse.
Family allowance scope
The family allowance is for the support of the surviving spouse for one year after the date of the decedent’s death. If the surviving spouse has separate property adequate for his or her own maintenance, no spousal allowance is awarded.
Case law interpretation
While there are relatively few cases that define the scope of the family allowance, there is a recent case from the Dallas Court of Appeals that provides some insight.
The Dallas court confirmed that the trial judge has discretion in setting the family allowance. An abuse of discretion standard is therefore applied on appeal.
In the Dallas case, the trial court found that the widow had sufficient separate property and denied the request for a family allowance. The separate property was through the widow’s 401k, her share of the sales proceeds of the homestead, and a gift from her mother that paid the mortgage payments for her new house.
Another significant factor in the Dallas court’s analysis was that the widow didn’t request the family allowance until over a year after the death. This led to an argument that the allowance was just a creative way to enhance the widow’s share of the estate.
First, counsel should be alert to situations where the family allowance would benefit the surviving spouse.
Second, the allowance should be requested as soon after the death as possible to improve the chances of a successful award.