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What is 'Family Allowance', and how much can a surviving spouse of a decent claim?

Cypress, TX |

What is it for?

Attorney Answers 3


  1. Unless there is a small estate affidavit filed, after the inventory is presented to the court, the judge can determine a family allowance for the support of the surviving spouse and the minor children. You can find out more, here: http://law.onecle.com/texas/probate/286.00.html

    It would appear that the amount can vary depending on the circumstances.

    James Frederick

    *** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.


  2. In Texas, a surviving spouse can claim an amount equal to what would be required for one year of support for the surviving spouse and any minor or disabled children. In an independent administration, the amount does not have to be set by a judge. The executor can set the amount.

    When determining the amount, community property and non-probate assets like life insurance and retirement accounts are not considered. The only thing that would be considered would be whether the survivor had enough separate property on the date of death to support him or herself.

    The family allowance comes out of the decedents estate. Discuss this with your attorney since this can be a sticky subject if the family allowance will reduce the amount distributed to other heirs, or if the family allowance is being used to deny creditor claims. You want to make sure that the amount you claimed as a protected family allowance is reasonable based on your actual living expenses for 1 year from the date of death. You also want to make sure you correctly calculate the offset for any separate property you owned on the date of your spouse's death.


  3. There are various rights of a surviving spouse, including the right to remain in the homestead. One option is an "allowance in lieu of exempt property" which provides a maximum of $15,000 if there is not homestead and $5,000 if there isn't other exempt property. So, there is a discretionary allowance for support (section 286), homestead rights, or an allowance instead of homestead. It isn't that simple and since elections need to be made, I strongly urge you to consult an attorney.

    There is no legal relationship created or implied by the exchange of message on this website. All statements are not to be construed as legal advice but as general guidance. In all cases, an attorney should be retained to review the full circumstances and deliver advice consistent with the information learned.

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