What Is a Family Allowance Under Florida Probate Law?

by Jim Thomas

    A family allowance under Florida probate law is an amount of money granted to a deceased person's surviving spouse and children during the probate administration process. The purpose of a family allowance is to provide money for the spouse and children to live on until the estate is settled, a matter than can take months and sometimes even years.

    Probate Laws

    The Florida Bar Association describes probate as a "court-supervised process for identifying and gathering the assets of a deceased person, paying the decedent's debts, and distributing the decedent's assets to his or her beneficiaries." The person's assets, commonly called his estate, are normally used to pay the cost of probate, outstanding tax bills and any outstanding debts left by the deceased person at the time of death. The remaining assets of the estate are then distributed to the beneficiaries of the estate.

    Family Allowance

    If a husband was living in Florida when he died, the surviving spouse and any minor children he was supporting or obligated to support are entitled to a "reasonable" allowance paid from the assets of his estate. Family allowances cannot exceed $18,000 and may be paid in a lump sum or in installments.

    Elective Share

    In addition to a family allowance, Florida law entitles a surviving spouse to 30 percent of a decedent's estate. For example, if the will leaves 10 percent of the estate to the surviving spouse and 90 percent to the Humane Society, the spouse is nonetheless entitled to 30 percent. The family allowance and the elective share laws shelter a surviving spouse and minor children from financial deprivation during and after the probate process. However, a premarital or post-marital agreement carries more weight than an elective share and can void a surviving spouse's right to claim it.

    Considerations

    A family allowance isn't "chargeable" against the share of a decedent's estate the surviving spouse and children are entitled to inherit, unless the will states otherwise. Thus, the surviving spouse and children are free to collect both a family allowance and the full value of the estate left to them. If both the husband and wife are deceased, the surviving children are entitled to ask for a family allowance to be paid to them or their guardians.

    About the Author

    Jim Thomas has been a freelance writer since 1978. He wrote a book about professional golfers and has written magazine articles about sports, politics, legal issues, travel and business for national and Northwest publications. He received a Juris Doctor from Duke Law School and a Bachelor of Science in political science from Whitman College.

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