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