Disclaimer    

Inheritance Issues -- Widow's Allowances

Every state has laws that offer some protection for the welfare of a surviving spouse and, to a lesser extent, minor children of the deceased in cases where the deceased did not provide for them in his or her will or where the family requires financial assistance while the estate is being settled. For the most part, these provisions favor the surviving spouse, and amounts allowed for the care of minor children, surprising as it may seem, are usually quite limited. A minor child has no right to sue the estate of a parent for support, despite the fact that the parent had the legal obligation to support the child while the parent was alive. Most states, however, do provide shelter, at least, for the minor child for a period after the parent's death.

Such "shelter" provisions, frequently called "Homestead" rights, usually allow the surviving spouse and the deceased's minor children to continue to live in the home (even though it may have been left to someone else under the will), at least until the children reach the age of majority, and, in many cases, the surviving spouse may continue to reside there for the rest of his or her life, whether there were children or not.

Widowers are now generally permitted to receive allowances from the estate, but for hundreds of years such allowances were given only to widows, because of the husband's obligation to support and provide for his wife. This is in addition to any Homestead allowance.

The purpose of the allowance, which is paid out of the deceased spouse's probate estate, is to provide for the care and support of the surviving spouse during the period of administration of the deceased spouse's estate. Knowing how long it can take to settle an estate, and considering the fact that distributions are not normally made to beneficiaries for many months after death at best, the probate courts are empowered under the laws of every state to order payments made to the surviving spouse from the estate for his or her maintenance and support.

The widow's allowance ordered by the court takes priority over all other debts of the estate and may be paid to the spouse even though the estate is insolvent, or being sued or contested. It may be given to the spouse whether or not she is named as a beneficiary under the will, and even where there was no will. Furthermore, the allowance is available to the spouse in addition to any forced share she may take or other benefits she receives from the estate. Since it takes first priority, the allowance could, if large enough in proportion to the rest of the estate, disrupt or even reduce other bequests. In fact, if the estate was small enough, it could be used entirely for the widow's allowance and there would be no estate to administer, despite the fact that the deceased spouse left a will with bequests to others.

The amount of the allowance is always up to the court, which takes into consideration the size of the estate and the circumstances of the widow, such as age, health, general needs, and manner of living. It is this last consideration that often gives rise to the greatest discrepancies between what the widow thinks she should get, what the estate thinks she should get, and what the court gives her.

Although the court has wide discretion in deciding the amount of the allowance and in most cases the length of time it will be paid, it has no discretion as to the persons who are entitled to be paid. For instance, even though a spouse may have been legally separated from her husband for years before his death, she may still be entitled to a widow's allowance on his death. And no matter how needy a widow may continue to be, if she remarries after her husband's death, any widow's allowance will immediately cease, as she is then no longer his widow.

The allowance is not automatic. It must be applied for by the surviving spouse within a reasonable time after the death of the other spouse, and if the executor of the estate or the beneficiaries feel it is excessive, they can appeal the order. Since most estates take quite some time to settle, it is a good idea to consider applying for the widow's allowance soon after the death of a spouse to provide quick, liquid funds for the support of the survivor. However, if the surviving spouse already has adequate funds and is the beneficiary of the estate as well, she may forgo the allowance, use her own funds for support, and simply wait for the estate to be settled. On the other hand, if she is not the only beneficiary, or if there is a substantial number of creditors who stand to take too large a bite out of the estate, then the surviving spouse should definitely apply for the widow's allowance.

Copyright 2006 LexisNexis, a division of Reed Elsevier Inc.