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Court Says Widow’s Allowance Paid out of Community Property Estate

The probate process can present a number of challenges for surviving spouses. These challenges can include figuring out how to pay personal expenses when the primary liquid assets are tied up in probate. Texas law allows for a widow’s allowance to cover these expenses. The court in Estate of Nielsen, No. 06-17-00055-CV (Tex. App.–Texarakana 2017) addressed whether the widow’s allowance is to be paid out of her separate property or the community property estate that would pass to another beneficiary.

Facts and Procedural History

The decedent was survived by his wife. His wife filed an application for a family allowance pending the probate case being closed. The primary estate beneficiary under the decedent’s will opposed the request. The probate court granted the surviving wife $137,100 and provided that this amount was to be charged against the entire community property estate. The beneficiary filed an appeal, arguing that the probate court erred as it should have allowed the family allowance against the wife’s separate property and not the community property.

Widow’s Allowance Under Texas Law

Texas law has provided a widow with a living allowance. As noted by the court, this allowance was paid out of the entire community property estate.

Texas enacted a new Estates Code in 1955 that provided continued and modified the requirements for the family allowance. This law required:

  • The trial court should fix a family allowance for the surviving widow in an amount sufficient for her maintenance for one year from the time of the decedent’s death.
  • The court is to consider the circumstances then existing and base the amount of the allowance on the facts anticipated in that first year.
  • In its order, the court is required to state the amount of the allowance, provide how the same would be payable, and direct the personal representative to pay it in accordance with law.
  • The allowance was then to be paid in preference to all other debts or charges against the estate, except expenses of the funeral and last sickness of the deceased.

This law is substantially similar to the current family allowance rules.

Given that the Texas legislature changed the law without changing this provision, the appeals court concluded that the Texas legislature adopted the prior case law. Put another way, the appeals court concluded that the family allowance is to be paid out of the community property estate, not just the widow’s separate property.

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