Also known as: family allowances · widow's allowance · family support
Written by attorneys — see sources 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.
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.
In 1930 a New York resident created a revocable trust that was amended in 1931. The trust directed income from the corpus to his wife for life. It also granted her a general power of appointment. In default of appointment half the corpus passed to the decedent's heirs and half to the wife's heirs. In 1951 the wife executed an instrument that purported to release the general power and convert it into a special power. The decedent died in 1957. His estate claimed a marital deduction for the widow's trust on the federal estate tax return. The Commissioner disallowed the deduction under section 2056(b)(5) of the 1954 Code and assessed a deficiency. The estate petitioned the Tax Court for redetermination. While that proceeding was pending the estate obtained a New York Supreme Court decree declaring the 1951 release a nullity. The Tax Court accepted the decree as controlling and allowed the deduction. A divided Second Circuit affirmed. The companion case involved the estate of a Connecticut decedent who died in 1958. His will directed payment of estate taxes without proration and created a residuary trust granting his wife a general testamentary power of appointment. The Commissioner disallowed part of the marital deduction. The executor then obtained a probate court order applying the state proration statute. The District Court refused to treat the probate decree as binding on federal tax questions. The Second Circuit agreed the decree was not conclusive. The two cases reached the Supreme Court after the Second Circuit panels reached differing conclusions on the effect of the state decrees. Certiorari was granted to resolve the conflict among the circuits.
View caseYes. 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.
…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…