Safeguards in Probate to Protect the Decedent’s Family: Exempt Property & Family Allowance
May 21, 2021
Among others, Florida’s Probate Code includes two particular safeguards to protect a Decedent’s surviving spouse and children – the exempt property and the family allowance. These two things are intended to provide immediate relief to the surviving spouse and children during the estate administration period, without having to wait for the three-month long creditor claims period to expire.
Exempt Property – Fla. Stat. 732.402
This section of the probate code provides that: “[i]f a decedent was domiciled in this state at the time of death, the surviving spouse, or, if there is no surviving spouse, the children of the decedent shall have the right to a share of the estate of the decedent as provided in this section, to be designated ‘exempt property.’”
What property does this include? Section 732.402(2) answers this question:
(2) Exempt property shall consist of:
(a) Household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death.
(b) Two motor vehicles as defined in s. 316.003, which do not, individually as to either such motor vehicle, have a gross vehicle weight in excess of 15,000 pounds, held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles.
(c) All qualified tuition programs authorized by s. 529 of the Internal Revenue Code of 1986, as amended, including, but not limited to, the Florida Prepaid College Trust Fund advance payment contracts under s. 1009.98 and the Florida Prepaid College Trust Fund participation agreements under s. 1009.981.
(d) All benefits paid pursuant to s. 112.1915. [i.e., death benefits for teachers and school administrators]
Of course, the statute sets forth some exceptions. For instance, if property is specifically devised in Decedent’s will, it is excluded from exempt property. For instance, if a Decedent specifically devises a particular item of furniture or motor vehicle to someone who is not the surviving spouse or the children of the Decedent, then that particular furniture item or that motor vehicle will not qualify as exempt property. Fla. Stat. 732.402(5).
There are short, finite deadlines in order to obtain the exempt property protection, which are set forth in Fla. Stat. 732.402(6): “Persons entitled to exempt property shall be deemed to have waived their rights under this section unless a petition for determination of exempt property is filed by or on behalf of the persons entitled to the exempt property on or before the later of the date that is 4 months after the date of service of the notice of administration or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the estate subject to this section.”
Family Allowance – Fla. Stat. 732.403
In addition to exempt property, a “family allowance” for the surviving spouse or the Decedent’s lineal heirs whom the Decedent was supporting or obligated to support is another entitlement provided vis-à-vis Florida’s Probate Code.
The family allowance is a distribution from the Decedent’s estate, which can be distributed either in a lump sum or in periodic installments, but the total cannot exceed $18,000.
There are a few important and interesting nuances with respect to the family allowance:
- As to the actual payment, the statute provides: “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 which passes to the surviving spouse or the lineal heirs, unless the Decedent’s will says otherwise.
- The death of any person who is entitled to a family allowance terminates the right to that part of the allowance which is unpaid.