The surviving spouse or, when there is no surviving spouse, minor children of a decedent may petition the court for an award from the property of the decedent. Such award can continue during the term of the probate. The spouse and children are treated as general creditors of the estate and their claim has priority over all other creditors. Therefore, the amount of the award is immune from all debts or claims of creditors.
The granting of the family allowance is discretionary with the court; the amount of the award depends on the circumstances and necessities of the surviving family of the decedent. The length or brevity of the marriage may also be a factor to consider.
- Eighteen months from decedent’s death; if a Personal Representative has been appointed, within twelve months of decedent’s death.
- Any probate of decedent’s estate in Washington has terminated.
- Six years from decedent’s death.
The award may be made from either the community or, more favorably to the surviving spouse, the separate property of the decedent. The amount of the “basic” award is $125,000 and may be increased or decreased in the Court’s discretion. The Court may:
- Increase the award if the claimant’s present and reasonably anticipated future needs during probate administration with respect to basic maintenance and support will not be provided for from other resources, and that the award would not be inconsistent with the decedent’s intentions.
- Decrease the award if the claimant is entitled to receive probate or nonprobate property resulting from decedent’s death, in which case the award may not be decreased more than the value of such property. A probate lawyer can assist you in this case.
Decrease the award to a surviving spouse if:
- The decedent is survived by children who are not the children of the surviving spouse, and the award would decrease the amount otherwise distributable to such children.
- The award would decrease the amount otherwise distributable to any of decedent’s minor children.
The award requires that the funeral expenses, expenses of last sickness, and expenses of administration have been paid or provided for, and that no recipient has participated in the willful and unlawful killing of the decedent.
The major benefit of receiving property as a family award is that, with few exceptions, it takes priority over all gifts, taxes, and claims in the estate, for example all debts, including judgments and judgment liens, of the decedent and the surviving spouse occurring at the decedent’s death.