After the death of a spouse, the surviving spouse and family is permitted an allowance from the Oklahoma estate to maintain the family during the probate process.
Section 58 Okl. St. § 58-314 governs the family allowance in Oklahoma probate and states:
If the amount set apart as aforesaid be less than that allowed, and insufficient for the support of the surviving spouse and children, or either, or, if there be no such personal property to be set apart, and if there be other estate of the decedent, the court may in its discretion make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family, according to their circumstances during the progress of the settlement of the estate, which, in case of an insolvent estate, must not be longer than one (1) year after granting letters testamentary, or of administration.
What Is the Purpose of the Oklahoma Family Allowance?
The purpose of the statutory Oklahoma family allowance is to maintain the surviving spouse and decedent’s family during the probate administration process. While the affairs and accounts of the decedent are being settled through probate, Oklahoma law wants to make sure that the surviving family members have the resources they need in order to maintain themselves during the probate of the decedent’s estate.
Family Allowance Is a Preferred Claim
Family allowance is one of the first debts paid from the Oklahoma probate estate. Section 58-315 states:
Any allowance made by the court in accordance with the provisions of this article must be paid in preference to all other charges, except funeral charges or expenses of administration, and any such allowance, whenever made, may, in the discretion of the court, take effect from the death of the decedent.
The Family Allowance is priority debt of the estate, right behind funeral expenses and the expense of the last sickness. See In What Order Are Debts Paid In Oklahoma Probate?
Can a Spouse or Family Be Deprived Of the Support Allowance In a Will?
No, the family allowance in Oklahoma probate is fixed by statute, and is not subject to a decedent’s unilateral control under a will. In In re Stackman’s Estate, a 1963 opinion from the Oklahoma Supreme Court, the Court discussed the support allowance permitted after the death of a spouse and stated:
The right of a widow, who was a member of the family of the deceased and entitled to his support, at the time of his death, to have such allowance from the estate as may be reasonably necessary for her support during the settlement of the estate, is thus fixed by statute. It is not within the power of the husband by any provision of his will to deprive her of this right, or to in any wise limit the power of the court, in the exercise of its proper discretion, to fix the amount to be allowed.
Can Family Allowance Be Waived By Marital Agreement In Oklahoma?
No, the family allowance cannot be waived by marital agreement in Oklahoma. In In re Rossiter’s Estate the Oklahoma Supreme Court stated:
[T]he care of the widow and/or children during the administration of the estate is a matter of public concern and that any provision by contract between the parties, which attempts to negative, either by express words or by implication, the statutory provision therefor and to supersede the discretion of the county court in the premises, is ineffectual and void as against public policy; and that therefore a prospective wife cannot waive or cut off her right to a widow’s allowance under section 1226, supra, by a provision in an antenuptial contract.
The family allowance is one of the important rights a surviving spouse and family has in Oklahoma after the death of a spouse.
