When a provider dies his or her surviving spouse (or registered domestic partner) and/or minor children can soon find themselves without the necessary resources to maintain themselves in their accustomed manner of living.   Under California law these persons have entitlements regarding a place to live, the use of certain personal property, and a family allowance.  (Note: A dependent parent and and adult child may sometimes be given a Family Allowance.)  Let’s discuss.

The surviving spouse (registered domestic partner) and minor children are immediately entitled to retain possession of the family home, clothing, appliances, household furniture, the decedent’s vehicle and tools.  Initially no court involvement is required.  Such immediate rights last until sixty days after the filing of the inventory and appraisal, unless that time frame is modified by court order on good cause.  These rights apply even if these family members are not beneficiaries under the decedent’s will.  Thus, a disinherited widow has these rights.

Once the inventory and appraisal is filed, the surviving spouse and minor children may then petition the Probate Court for a Family Allowance, Set Aside of Exempt Property, and/or a Probate Homestead.  Let’s examine.

First, the surviving spouse and minor children are entitled to petition for a Family Allowance from the estate necessary to maintain themselves in their accustomed manner of living through the conclusion of probate, in a solvent estate, or up to one year from the date of the decedent’s death, in an insolvent estate.  Once granted, the Family Allowance is often retroactive to the decedent’s date of death.  If the surviving spouse remarries or the minor children become adults, however, then the allowance terminates because their eligibility has ceased, even if the probate continues.

The Family Allowance is a charge against the decedent’s entire estate, including any community property jointly owned with the surviving spouse; thus, the surviving spouse’s share of any community property can be used to pay the Family Allowance, on a proportionate basis.  It must be paid as soon as funds become available.  This can sometimes mean selling assets to create available cash.

Second, to avoid dispossession after the immediate right to possession expires, the surviving spouse and minor children may petition the court to allow them to retain possession of the household furniture, appliances and family car until the probate is concluded.  Such continued possession, however, is entirely discretionary with the Probate Court, and involves a facts and circumstance analysis.

Third, the surviving spouse and minor children may petition the court to create one Probate Homestead.  Unlike the Family Allowance and the Set Aside of Exempt Property, the Probate Homestead can continue past the close of the probate estate, sometimes for many years.  In the case of a surviving spouse, the Probate Homestead may last for the remainder of his or her life, so long as he or she does not remarry.  For minor children, the Probate Homestead terminates upon reaching adulthood.

The application of these rules in the context of a specific probate can become complicated and contentious as interested third parties — such as creditors and beneficiaries –become involved.

The decedent’s will may even expressly force the surviving spouse to elect between inheriting gifts under the will (and receiving such gifts at the end of probate) or asserting these protections contrary to the will and foregoing such gifts.

If granted, a Probate Homestead does not have to involve the existing family home.  The Court will apply the following factors to select a residence:  (1) The decedent’s intentions; (2) the creditor’s rights; and (3) the interests of other beneficiaries under the will.

These rules are more complicated than can be discussed in this article.  Well drafted wills say whether a family allowance and homestead should be granted.  Planning ahead can protect surviving loved ones.

“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”