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How Does The Family Allowance Work In A Florida Probate Estate?

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A formal probate proceeding often takes several months to complete. During this time, the decedent’s assets remain under the control of their estate. This can make it difficult for the decedent’s surviving spouse and dependents (i.e., children) to pay their basic living expenses. For this reason, Florida law authorizes the estate to pay a “family allowance” to help support the decedent’s family while the probate remains active.

Section 732.403 of the Florida Statutes states that the surviving spouse and any “lineal heirs” the decedent was required to support during their lifetime is “entitled” to a family allowance. But the family allowance is not automatic. The beneficiaries must file a petition to claim it. A judge will then decide the proper amount of any family allowance, up to a statutory maximum of $18,000, and whether it should be paid in a single lump-sum of periodic installments.

Florida courts have made it clear that while a surviving spouse is “entitled” to a family allowance of some sort, the “reasonableness of the allowance must still be established.” This means that in deciding how much to award, the court can take into account the surviving spouse’s actual living expenses.

Limits on the Family Allowance

The family allowance does not count towards any share or distribution that the surviving spouse or lineal descendants may receive from the decedent’s estate. Nor does the allowance affect any of the spouse’s other inheritance rights under Florida law, such as the elective share or homestead exemption. However, if any person entitled to part of the family allowance dies during the probate process, that will terminate their respective share of any family allowance still owed.

It is also important to understand that any family allowance is subject to the availability of assets in the probate estate itself. Florida law divides the expenses of obligations of a probate estate into a number of “classes.” These classes basically establish a hierarchy of who gets paid first. Florida places the family allowance in Class 5. This means there are four classes of obligations that take precedence, including the costs and expenses of administering the estate itself, the decedent’s funeral and burial costs, any taxes owed by the estate, and the expenses of the decedent’s final illness. If there are insufficient funds left after paying all of these higher-class expenses, there may be little or nothing left to pay any family allowance.

Speak with a Florida Estate Litigation Lawyer Today

Although litigation over the family allowance is rare, disputes may arise between surviving spouses and personal representatives over the “reasonableness” of any requested payments. Indeed, there was recently a significant court decision in Colorado regarding that state’s family allowance law and whether a spouse could claim it even if the decedent had no children. If you find yourself involved in a similar dispute and require legal advice from an experienced Pompano Beach estate and trust litigation attorney, contact the offices of Mark R. Manceri, P.A., today to schedule a consultation.

Sources:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.403.html

scholar.google.com/scholar_case?case=18309383411005158243

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