What Is A Family Allowance In Probate?

In formal probate, the surviving spouse and lineal heirs, whom the decedent was obligated to support, have a claim for a what is a called a family allowance described under Fla. Stat. §732.403. Under this statute, the spouse and heirs can file a petition to claim up to $18,000.00 in available funds from the estate for their maintenance and support during the probate process. The family allowance is significant to all interested parties due to the fact that funds are distributed directly to the spouse or heirs and would not be available to satisfy other beneficiaries or creditors.

A family allowance is awarded at the discretion of the judge presiding over the probate case. Fla. Sta. §732.403 clearly states that the classes of beneficiaries described above are entitled to an allowance. The question for the judge becomes the reasonableness of the allowance and how such a payment is to be made. DeSmidt v. DeSmidt, 563 So.2d 193 (Fla. 2d DCA 1990). The court does not have to grant the maximum amount provided by law and can allow for a lesser amount and payments over time instead of a lump sum payment. There is no consideration given for the necessity of the allowance. Therefore, case law seems to indicate the judge should not consider whether the spouse or the lineal descendants have ample means from which to provide their own support during administration. The difference between what considerations show reasonableness and what considerations show necessity are not completely clear.

If an objection is filed to a petition for family allowance by a beneficiary or creditor, the court will schedule a time to hear the petition and the objection. Such a hearing should be an evidentiary hearing as the court is going to have to consider the daily living expenses, anticipated remaining length of the probate process, standard of living, and availability of other means of support. Some courts have also considered life insurance benefits and any support given during a decedent’s lifetime as additional factors.

It is important to note that any family allowance is a benefit that is in addition to other exemptions that may be available to the surviving spouse or lineal descendants, including exempt property and homestead rights. The family allowance is also not chargeable against the elective share. If you are presented with a situation involving a family allowance, contact an experienced Fort Myers attorney for a full appraisal of your rights.