How can I prevent a family allowance during the probate of my estate?
A family allowance can be a serious drain on the assets of a decedent's estate. As such, one may want to consider options to soften its potential blow. It's important to note that family allowances are not a major issue for most clients. Some situations more than others may call for considering one of the following options to limit his or her family members' ability to request a family allowance.
Waiving a family allowance
Under California Probate Code Section 141(a)(5), a surviving spouse may waive his or her right to a family allowance. The waiver must be in writing, and the surviving spouse must do so voluntarily and have knowledge of the relevant facts. The precise form of a waiver is beyond the scope of this post; however, more specifics are laid out in California Probate Code Sections 140-147.
Another strategy is to force the surviving spouse or other family members to decide between a gift left to them in the deceased spouse's Will or to request that a court grant a family allowance. Prior to death, the deceased spouse would include provisions in his Will which would cause the beneficiary to forfeit their gift if a family allowance is requested.
If the gift is substantial, and there's a risk that a judge may deny or only grant a small family allowance, the family members may think twice before requesting a family allowance. There's no statutory support for this approach, and to date, this technique does not appear to be tested in a court of law; however, it may be a worthwhile strategy to consider in situations where a waiver is not possible.
The impact of a family allowance cannot be underestimated, and for certain clients, it is imperative to think through how it might affect their estate plan.