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What is a Family Allowance under Florida Law for Surviving Spouse and Children?

What is a Family Allowance under Florida Law for Surviving Spouse and Children?

Full question:

My Husband recently dies and we are opening an estate. We have two children. He appointed his Brother as Personal Representative. My question concerns how we live during the probate or administration since all money is in his name alone. I have heard of a family allowance. What is that?

Category: Wills and Estates
Subcategory: Family Allowance
Date: 04/07/2025
State: Florida

Answer:

Under Florida Law not only are you protected for the homestead, if there is one, but you are entitled to maintenance or family allowance for you and the children.

The relevant provisions of the Florida Probate Code provide the following:

732.403 Family allowance.—In addition to protected homestead and statutory entitlements, if the 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. The court may order this allowance to be paid as a lump sum or in periodic installments. The allowance shall not exceed a total of $18,000. It shall be paid to the surviving spouse, if living, for the use of the spouse and dependent lineal heirs. If the surviving spouse is not living, it shall be paid to the lineal heirs or to the persons having their care and custody. If any lineal heir is not living with the surviving spouse, the allowance may be made partly to the lineal heir or guardian or other person having the heir’s care and custody and partly to the surviving spouse, as the needs of the dependent heir and the surviving spouse appear. The family allowance is not chargeable against any benefit or share otherwise passing to the surviving spouse or to the dependent lineal heirs, unless the will otherwise provides. The death of any person entitled to a family allowance terminates the right to that part of the allowance not paid. For purposes of this section, the term “lineal heir” or “lineal heirs” means lineal ascendants and lineal descendants of the decedent.

Reference:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/0732.html

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

How do you put heir property in your name?

To put heir property in your name, you typically need to file a petition with the probate court to have the property formally transferred. This may involve proving your relationship to the deceased and showing that you are entitled to inherit under state law. If there is no will, the court will follow intestate succession laws to determine ownership. It's advisable to consult with an attorney to ensure all legal requirements are met and to facilitate the process.

How to get heir property in your name without a will?

If there is no will, you can still claim heir property by following intestate succession laws in your state. This usually involves filing for probate, where the court will determine who inherits the property based on familial relationships. You may need to provide documentation proving your relationship to the deceased. Consulting an attorney can help navigate this process effectively.

How long do you have to file probate after death without will?

In Florida, you generally have two years from the date of death to file for probate if there is no will. However, it’s advisable to file as soon as possible to avoid complications. Delays can lead to issues with asset distribution and may affect your rights as an heir. Always consult with an attorney to ensure compliance with local laws.

How long do heirs have to claim property?

Heirs typically have two years from the date of death to file a claim for property in Florida if there is no will. However, if probate is opened, heirs should act promptly to ensure their claims are recognized. Delays can complicate the process and potentially jeopardize your inheritance rights. Consulting with an attorney can provide guidance on specific timelines and requirements.

Who has the highest priority for consideration as a personal representative?

In Florida, the highest priority for appointment as a personal representative goes to the surviving spouse. If there is no spouse, the court may consider the deceased's children, parents, or siblings in that order. If none are available, other relatives may be considered. It's important to follow the guidelines set forth in Florida law (Fla. Stat. § 733.301) for appointing a personal representative.

Do executors have to inform beneficiaries?

Yes, in Florida, executors (or personal representatives) are required to inform beneficiaries of the probate proceedings. They must provide notice of the probate filing and keep beneficiaries updated on the estate's status. This ensures that all interested parties are aware of their rights and the distribution process. Failure to notify beneficiaries can lead to legal complications.