Family Allowance

Losing any family member is an extremely difficult occurrence. Such loss is particularly difficult if the deceased left behind a spouse and minor children. The surviving spouse will often have many questions with regard to what must be undertaken in the probate process, and perhaps most immediately, with regard to how he or she will be able to maintain the family’s life in the absence of the deceased. If you find yourself in the daunting position as the survivor of a deceased spouse, it is important to evaluate your rights and options with a qualified Texas probate attorney.

One aspect of Texas probate law that should be discussed is the Family Allowance. The Family Allowance is a sum which is set aside for the deceased’s family to be used for the support of the surviving spouse and minor children. It is key to note that the Family Allowance is entirely separate from, and in fact may be awarded in addition to, a homestead, an exempt property set-aside, or an allowance in lieu of exempt property.

The court will set the Allowance in an amount sufficient to maintain the surviving spouse and minor children for one year after the decedent’s date of death. What amount is reasonable will generally relate to the circumstances found at the time of death as well as those expected to arise in the first year following the death. The court will not take into consideration what amount of the community estate the surviving spouse will receive, but should consider the amount of the surviving spouse’s separate property he or she has at his or her disposal to be used for family maintenance. The court will also take into consideration the survivor’s needs, accustomed standard of living, and estate assets consumed from the date of death until award of the Allowance.

Generally, it will be the surviving spouse who will make the application for the Family Allowance, but a court may award it on its own motion. The setting aside of a Family Allowance is often seen at the same time as the set-aside of the homestead and exempt property. It is important to note that the Allowance will trump all estate debts except those of funeral expenses and expenses of last illness. It is also key to recognize that the Allowance is to be paid entirely out of decedent’s estate, charged first against the decedent’s half of community property.

The application for and award of a Family Allowance is perhaps most often seen in cases of higher-net worth married couples with substantial debts, where income and cash flow are hard hit by the death of one spouse. The surviving spouse may have a very high standard of living and be left with limited cash resources, with creditors knocking at his or her door. The Allowance is also often seen in instances of second marriages, where the deceased may not have provided for (or at least adequately provided for) his or her surviving spouse, instead opting to leave the bulk of the estate to children from a prior marriage.

These, however, are not the only circumstances where the Allowance is prevalent; it is important to assess whether it would be appropriate or beneficial in your particular situation. We invite you to discuss the Family Allowance, as well as any other questions you have with regard to the probate process, with the qualified Houston probate attorneys at Garg & Associates.

We invite you to contact us for a consultation. Call Garg & Associates, PC at 281-362-2865 or complete our contact form.

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Garg & Associates, PC | 21 Waterway Avenue, Suite 300 | The Woodlands, Texas 77380 Please call 281-362-2865 | Fax: 866-743-4506
Serving The Woodlands, Spring, Houston, Conroe, Kingwood, Tomball, Cypress, Huntsville, Cleveland, Stafford, Montgomery County, Harris County, West Oaks, Memorial, Sugar
Land, River Oaks, Alief, Stafford, Missouri City, and Southwest Houston Texas.