Also known as: probate family allowances · family allowance · widow's allowance
Written by attorneys — see sources below.
A statutory entitlement paid from a decedent's estate to a surviving spouse or dependent children to cover living expenses during probate administration.
Penelope Price signed a written agreement before her marriage to Perry Pratt waiving all claims to his estate including family allowance. After Perry's death the personal representative denied her petition for the allowance. The probate court enforced the agreement and denied the claim.
Phoebe Park was convicted of feloniously killing her husband. She petitioned the estate for a family allowance to cover living costs during administration. The court held that the conviction triggered forfeiture of the allowance under the slayer statute.
Patricia Patel's estate included assets subject to federal estate tax. The surviving spouse claimed a family allowance under state probate rules. The court applied state law to determine the allowance amount for purposes of calculating the taxable estate.
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 through a written agreement signed before or after marriage. The agreement is enforceable without consideration.
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Yes. An individual who feloniously and intentionally kills the decedent forfeits the family allowance along with other estate benefits.
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Yes. The family allowance is payable in addition to the elective share and is not charged against it.
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The personal representative may distribute the estate immediately without notice to creditors when the estate value is insufficient to cover the allowance and other priority claims.
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…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…