Estate of Wolfe, 268 S.W.3d 780 (Tex. App.—Fort Worth 2008, no pet.).

Estate Administration

Family Allowance

Consideration of Surviving Spouse’s Separate Property


Surviving Spouse requested a family allowance of $132,444. Executor and Beneficiary objected claiming that she had sufficient separate property and thus was not entitled to a family allowance under Probate Code § 288. They explained that Surviving Spouse received life insurance proceeds of almost $300,000 as well as $120,000 as the beneficiary of IRA accounts and $85,000 in income. Nonetheless, the trial court approved a family allowance of $126,840.

The appellate court held that the trial court’s award was justifiable and not an abuse of discretion. With regard to the life insurance proceeds, the court explained that because the policy was the couple’s community property prior to Deceased Spouse’s death, the proceeds are not to be considered as the Surviving Spouse’s separate property for family allowance calculation purposes. The court then indicated that the same logic applied to the IRA benefits and Surviving Spouse’s income.

Moral: A surviving spouse may successfully claim a family allowance even if the surviving spouse actually has sufficient property on hand to cover one year of maintenance as long as that property was not the surviving spouse’s separate property prior to the deceased spouse’s death. Note that this result has the effect of sacrificing the deceased spouse’s intent to provide for will beneficiaries in favor of a surviving spouse who does not actually need the funds for his or her maintenance.