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The Rights of a Surviving Spouse: Part Two

The second of several rights enjoyed by a surviving spouse (absent a proper, formal waiver) is that of “family allowance.”  Family allowance is the concept that the surviving spouse and certain “lineal heirs” of the decedent the are entitled to money during probate administration.  The policy behind family allowance is to private ongoing financial support, for those who need it, while a decedent’s assets are tied up in probate. 

Under Section 732.402 of the Florida Statutes, a surviving spouse is not required to establish “necessity” to receive the support.  In other words, it does not matter whether the survivor was relying upon the decedent.  Notwithstanding, the reasonableness of the amount is something a probate judge is tasked with determining on a case-by-case basis.  Just because a person is entitled to support doesn’t mean the support must be plentiful. 

The maximum amount of family allowance is $18,000.00.  This sum can be paid in installments or via a lump sum.  Many individuals seek a single payment as the death of a recipient will terminate any unrealized installment payments. 

Perhaps the most important aspect of family allowance is that unless the terms of a last will and testament state otherwise, the family allowance is not chargeable against the share passing to the surviving spouse.  This means the benefit received is not deducted from his or her share of the estate.  In a sense, it is an additional gift.

While there is no deadline to file a petition seeking family allowance, a delay may be viewed by a judge as an indication that the funds are not needed, or that only a minimum payment is necessary.  As such, any surviving spouse (or lineal heir) requiring support during probate should promptly contact qualified counsel.