A Spousal Allowance refers to the right a person has to claim the personal property of their spouse even if they have not gone through the full probate or estate administration process.
This tool allows the surviving spouse to access funds ahead of the longer timelines and creditor claims that come with the completion of a full estate administration.
The surviving spouse, with a few exceptions, may claim up to $60,000.00 of the decedent spouse’s personal property. In addition, the surviving spouse may be entitled to claim an additional amount for each surviving child of the decedent.
When are children entitled to an allowance?
There are restrictions on when children can qualify to receive funds under this tool. The most common scenario is that the child must be under the age of 18. However, there may be exceptions for children that are full-time students, mentally incompetent, or totally disabled.
In order to qualify, a child must be the biological or legally adopted child of the decedent spouse. It also may be possible to claim funds if the surviving spouse is pregnant at the time of her husband’s death.
What property qualifies for the Spousal Allowance?
Only personal property can be claimed on the Spousal Allowance.
There are two ways to classify property: real and personal. Real property can be thought of as assets which are fixed in one place. Common examples of real property are land, homes, mineral rights, and other structures which cannot be moved. Real property cannot be claimed on a Spousal Allowance.
The second category is personal property. Personal property is everything that is not real property. Think of these as assets that can be moved or that can be stored in a financial institution. Everything from bank accounts, stocks, and retirement accounts to vehicles and coin collections could be claimed using this tool.
What else do I need to know?
There are timelines that must be met when applying for a spousal allowance. Under previous laws, the spouse had one year from the date of death to submit this application. But now, if a full estate has already been opened, then the spouse only has 6 months from the opening of that estate to file.
The court currently charges a filing fee of $20.00 and a $3.00 fee for each asset that is listed on the form.
When filing a spousal allowance, you must submit an original death certificate for the decedent spouse and documentation for the assets you are claiming on the form.
How We Can Help
- Identifying and valuing what assets may qualify for the Spousal Allowance
- Preparation and filing of all necessary paperwork
- Guiding you through the process of filing and transferring assets into your name
Stott, Hollowell, Windham & Stancil
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