Opinions and Legal Insights

What Is The Family Allowance In Florida Probate?

One of the rights available to Florida surviving spouses is the family allowance.  The award of a family allowance comes from the estate assets for the benefit of a surviving spouse or lineal heirs the decedent was supporting or was obligated to support during the administration of the estate.

The statutory family allowance is governed by section 732.403, Fla. Stat., and Rule 5.407 of the Florida Probate Rules.

Who Is Entitled To A Family Allowance Under Florida Law?

If a decedent was domiciled in Florida at the time of death, the surviving spouse and the decedent’s lineal heirs the decedent was supporting or was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during administration.

For purposes of the family allowance statute, the term “lineal heir” or “lineal heirs” means decedent’s lineal ascendants and lineal descendants.

The family allowance is to be paid to the surviving spouse for the use of the spouse and dependent lineal heirs.  If the surviving spouse has passed away, then the family allowance shall be paid to the lineal heirs or to the persons having their care and custody.

In situations where a lineal heir is not living with the surviving spouse, the family allowance may be made partly to the lineal heir or guardian or other caregiver, and partly to the surviving spouse, as necessary.

What Is The Amount Of The Family Allowance In Florida?

The family allowance in Florida is capped at $18,000.  The court may order the family allowance to be paid as a lump sum or in periodic installments.

The death of any person entitled to a family allowance terminates the right to that part of the allowance not paid.

Does The Family Allowance Impact Other Florida Spousal Rights?

No, the family allowance is in addition to protected homestead and statutory entitlements, and is not chargeable against any benefit or share otherwise passing to the surviving spouse or to the dependent lineal heirs, unless the decedent’s will otherwise provides.

How Do You Get A Family Allowance Award?

In order to receive a family allowance under Florida law, an interested person must file a petition to determine the family allowance.

The petition must be:

  1. Verified by the petitioner;
  2. State the names and addresses of the decedent’s surviving spouse and the decedent’s adult lineal heirs and the initials, address, and year of birth of the decedent’s minor lineal heirs and who were being supported by the decedent or who were entitled to be supported by the decedent at the time of decedent’s death; and,
  3. For each person for whom an allowance is sought, state the adult person’s name, or minor child’s initials, and relationship to the decedent, the basis on which the allowance is claimed, and the amount sought.

 

Can The Florida Probate Court Modify A Family Allowance Award?

Yes.  The Florida probate court retains the authority to re-examine and modify an award, either upward or downward, during the course of the administration of the estate.  Even though section 732.403, Fla. Stat. entitles a surviving spouse and qualified heirs to a family allowance, the reasonableness of the allowance must still be established.  Therefore, the Florida probate court retains the authority to re-examine an award of family allowance.

What Is The Deadline To Petition For A Family Allowance Under Florida Law?

The petition for family allowance can be filed anytime during administration.  However, since the purpose of the family allowance is to provide support for the family during the administration of the probate estate, it makes sense to file early in the administration.  See the important Deadlines and Timelines In Florida Probate.