Also known as: family allowances · widow's allowance · family support
Written by attorneys · grounded in primary & secondary sources — see below
A statutory provision granting the surviving spouse and dependent children a sum from the decedent's estate for maintenance during probate administration. The allowance takes priority over most creditor claims and passes in addition to any testamentary or intestate share. It is available regardless of the terms of the will and may be waived only by a written agreement meeting statutory safeguards.
Before marrying Francesca Fiore, Frank Fisher signed a written agreement waiving all rights to homestead allowance, exempt property, and family allowance. After Frank's death the estate invokes the document to deny Francesca any allowance. The probate court enforces the waiver because it was executed in writing by the surviving spouse and satisfies the statutory formalities.
Fatima Flores obtained a family allowance order in State A. After the obligor relocated, State A asks State B to enforce the order under the controlling-order rule. State B recognizes the original order because it remains the controlling order and has not been modified by a tribunal that assumed jurisdiction under the Act.
Select any source to read its text and confirm it supports the definition.
Finn Fletcher receives a family allowance order issued in New York, where emancipation occurs at age twenty-one. The order is registered in North Carolina, where emancipation occurs at age eighteen. The North Carolina court continues payments until the child reaches twenty-one because the issuing state's law controls the duration of the obligation.
Felicia Fuentes seeks a family allowance on behalf of a child against a nonresident father. The state court exercises personal jurisdiction over the father because the conditions of the Uniform Interstate Family Support Act are satisfied. The court may therefore adjudicate parentage and award the allowance.
After intentionally killing the decedent, Francesca Fowler claims a family allowance from the estate. The probate court denies the claim because a felonious and intentional killer forfeits all statutory benefits, including the family allowance. The estate is distributed as though the killer had disclaimed the interest.
The estate of Frank Fisher pays a family allowance to the surviving spouse during administration. The executor claims a marital deduction for the payments on the federal estate tax return. The deduction is allowed because the allowance qualifies as a transfer to the surviving spouse under the applicable tax rules.
Yes. A surviving spouse may waive the family allowance only by a written agreement signed before or after marriage. The agreement is enforceable without consideration but is invalid if the spouse lacked independent legal representation and the document failed to provide a plain-language explanation of the rights waived.
Supporting sources
Yes. An individual who feloniously and intentionally kills the decedent forfeits the family allowance along with every other benefit under the probate article. The estate is then distributed as if the killer had disclaimed the interest.
Supporting sources
The family allowance is paid in addition to the elective share and is not charged against it. Both rights are subject to the same waiver rules but the allowance is not subject to creditor claims in the same manner as the elective share.
Supporting sources
…of the balance. The Commissioner disallowed the claimed deduction and levied a deficiency which was based on the denial of the widow's allowance as part of the marital deduction and the reduction of the marital deduction for the widow's trust, by requiring that the estate tax be charged to the full estate prior to the deduction of…