Also known as: homestead allowances
Written by attorneys · grounded in primary & secondary sources — see below
A statutory entitlement that grants a surviving spouse a fixed cash amount from the decedent's estate. The allowance is exempt from and takes priority over all claims against the estate. It is payable in addition to any share the spouse receives by will, intestacy, or elective share.
Harriet Hamilton signed a written marital agreement before marrying Hakeem Harris. The agreement stated that she waived all rights to homestead allowance from his estate. After Hakeem's death, Harriet sought the allowance, but the probate court enforced the waiver and denied her claim.
Hazel Hoffman survived her husband and already held a constitutional homestead interest in their family home. She petitioned for the statutory homestead allowance from other estate assets. The court charged the value of her constitutional interest against the statutory allowance and reduced the cash payment accordingly.
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Helena Hoffman was convicted of intentionally killing her husband. She then claimed a homestead allowance from his estate. The probate court ruled that the conviction caused her to forfeit the allowance entirely, so the estate passed as if she had disclaimed it.
A surviving spouse may waive the homestead allowance only by a written agreement signed before or after marriage. The agreement is enforceable without consideration but is not enforceable if the spouse proves it was involuntary or the result of duress.
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The value of any constitutional homestead right received by the surviving spouse must be charged against the statutory homestead allowance to the extent the home would have been part of the estate but for the constitutional provision.
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An individual who feloniously and intentionally kills the decedent forfeits the homestead allowance along with other statutory benefits. The estate then passes as if the killer had disclaimed the interest.
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The homestead allowance is not charged against the elective share and is payable in addition to it. The allowance addresses immediate post-death needs while the elective share protects the spouse's long-term interest in the augmented estate.
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…and (3)]. 3. If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are not charged against, but are in addition to, the elective-share and supplemental elective-share amounts. [¶10] Nothing in the plain…