The comprehensive guide to probate, trusts, estate planning, and inheritance litigation.

Family Allowance In Texas Probate

Under the Texas Estates Code, before a Texas probate court approves the inventory, appraisement, and list of claims of an estate, a surviving spouse may apply to the court to fix a family allowance.

What Is A Family Allowance In Texas Probate?

A family allowance in Texas probate is an amount payable from the decedent’s estate, necessary for the maintenance of the surviving spouse, the decedent’s minor children, and the decedent’s adult incapacitated children for one year after the date of the decedent’s death.

The purpose of the family allowance is to provide for maintenance of a decedent’s survivors during the course of the estate administration.

Who Is Entitled To A Family Allowance In Texas?

Under Texas law, the decedent’s surviving spouse or any other person authorized to act on behalf of the decedent’s minor children or adult incapacitated children may apply to the court to have the court fix the family allowance.  See Texas Estates Code Chapter 353 (C).

How Does A Surviving Spouse Apply For A Family Allowance?

A Texas surviving spouse can apply for a family allowance before the inventory, appraisement, and list of claims of an estate are approved.  The surviving spouse applies by filing an application and a verified affidavit.  Pursuant to Texas Estates Code § 353.101(b), the application and verified affidavit must describe:

(1)  the amount necessary for the maintenance of the surviving spouse, the decedent’s minor children, and the decedent’s adult incapacitated children for one year after the date of the decedent’s death; and

(2)  the surviving spouse’s separate property and any property that the decedent’s minor children or adult incapacitated children have in their own right.

If the surviving spouse does not apply and file a verified affidavit, then immediately after approval of the inventory,  appraisement, and list of claims of an estate, the court shall fix a family allowance for the support of the decedent’s surviving spouse, minor children, and adult incapacitated children.

Is A Texas Surviving Spouse Always Entitled To A Family Allowance?

No.  Pursuant to Texas Estates Code § 353.101(d), a family allowance may not be made for:

(1)  the decedent’s surviving spouse, if the surviving spouse has separate property adequate for the surviving spouse’s maintenance;

(2)  the decedent’s minor children, if the minor children have property in their own right adequate for the children’s maintenance; or

(3)  any of the decedent’s adult incapacitated children, if:

(A)  the adult incapacitated child has property in the person’s own right adequate for the person’s maintenance; or

(B)  at the time of the decedent’s death, the decedent was not supporting the adult incapacitated child.

Therefore, if the surviving spouse has separate property adequate for his or her maintenance, the trial court may not award the family allowance.

In determining the amount of the family allowance, the trial court must consider the whole condition of the estate during the first year after the decedent’s death, the necessities of the surviving spouse, and the circumstances to which he or she is accustomed.

What Is Considered Separate Property For Purposes Of Determining Family Allowance?

In Estate of Wolfe, a Texas appeals court addressed separate property and family allowance in Texas probate matters and stated:

“Separate property” for purposes of a family allowance, including that acquired by “gift, devise, or descent” does not mean the surviving [spouse’s] interest in the community property of herself and deceased husband, so as to bar her from the right to an allowance for the first year’s support of the community estate of herself and husband[.]

In addition, life insurance proceeds, as community property of spouses before one’s death, are not considered to be the “separate property” of the surviving spouse following the death in the family allowance calculation.  Also, for purposes of a family allowance, an annuity, a tax refund, a portion of a savings account belonging to a deceased spouse, and earned wages are not a surviving spouse’s separate property.

Who Pays For The Family Allowance?

The family allowance in Texas is payable from the entire community estate.  See Estate of Nielsen.  Pursuant to Texas Estates Code § 353.104:

The family allowance made for the support of the decedent’s surviving spouse, minor children, and adult incapacitated children shall be paid in preference to all other debts of or charges against the estate, other than Class 1 claims.

The family allowance can be paid in a lump sum or in installments, as ordered by the Texas probate court.  Texas Estates Code § 353.102.

When a family allowance has been fixed, the court shall enter an order that:

(1)  states the amount of the allowance;

(2)  provides how the allowance shall be payable; and

(3)  directs the executor or administrator to pay the allowance in accordance with law.

The family allowance can be payable to the surviving spouse, or to the guardian of the surviving children (if there are minor children who are not also children of the surviving spouse of if there is no surviving spouse).  See Texas Estates Code § 353.105.

What If There Is Insufficient Cash in The Estate To Pay The Family Allowance?

If the estate does not have sufficient cash to pay the family allowance, estate property can be sold to raise the amount necessary to pay the family allowance, if:

(1)  the decedent had no personal property that the surviving spouse, the guardian of the decedent’s minor children, or the guardian of the decedent’s adult incapacitated child or other appropriate person acting on behalf of the adult incapacitated child is willing to take for the family allowance, or the decedent had insufficient personal property; and

(2)  there are not sufficient estate funds in the executor’s or administrator’s possession to pay the amount of the family allowance or a portion of that amount, as applicable.

(b)  Property specifically devised to another may be sold to raise cash as provided by Subsection (a) only if other available property is insufficient to pay the family allowance.

See Texas Estates Code § 353.107.

Sign up with Probate Stars to receive the latest probate news and information about lawyer sign ups.