Thomas Hodge was survived by his wife, Marjory, and two minor children, Elroy and Levy.   Thomas’ will left three quarters of his estate to Marjory and one quarter to Robert, his adult son by a previous marriage. Thomas named his brother, Evan, as the independent executor. Marjory is worried she and the children will have insufficient funds to meet their expenses during the administration of the estate.  Does Texas law provide any protection for Marjory and the children?   

According to Texas Estates Code §353.101(a), Marjory, as surviving spouse, has the right to apply to the probate court to have the judge fix a family allowance to be paid from the estate.. With her application to the court, Marjory would file a verified affidavit stating the amount necessary for her and the children’s maintenance for one year after Thomas’ death. The affidavit must also state the amount of any separate property she owns and any amount of property of the children in their own right. See Texas Estates Code §353.101(b) (1) and (2).

At a hearing, Marjory will have the burden of proving, by a preponderance of the evidence: (1) the needs alleged; (2) that she does not have separate property sufficient property for her own maintenance; and (3) that the children do not have adequate property in their own right adequate for their maintenance. Once Marjory has met her burden of proof, the court must set a family allowance for Marjory and the children’s support.

Marjory estimated the first year’s expenses for herself and the children would be approximately $100,000.00 and requested that amount as an allowance.  Robert contested that amount because Marjory had received life insurance proceeds of $250,000.00, was the beneficiary of $125,000.00 from Thomas’ IRA and earned a salary of $60,000.00.

In determining the amount of the family allowance, assets that were community property at the time of death are not counted. Examples of non-countable assets include wages of the surviving spouse, life insurance and retirement benefits inherited from the deceased spouse.  See Estate of Wolf, 268 S.W3d 780 (Tex.App.-Fort Worth 2008, no writ). Therefore, Robert’s claims that these assets should reduce Marjory’s allowance are not valid.

The family allowance is given priority over most other claims against the estate, meaning it is paid before any other claim, except funeral expenses and expenses of the decedent’s last illness in an amount approved by the court not to exceed $15,000.00. See Texas Estates Code §353.104 and § 355.102(b). After Evan, as executor, pays the funeral and last illness expense up to the limitation amount, he must then set aside the $100,000.00 allowance requested to Marjory, assuming the estate has sufficient funds remaining to do so.

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.