Estate of Nielsen, 533 S.W.3d 39 (Tex. App.—Texarkana 2017, no pet.).

Estate Administration

Family Allowance


The trial court awarded the decedent’s surviving spouse a family allowance of $137,100 to be charged against the entire community property estate. The surviving spouse appealed asserting that the family allowance should only be charged against the decedent’s share of community.


The appellate court affirmed. The court began its analysis by recognizing that it may set aside a family allowance order only if the trial court abused its discretion by acting “without reference to any guiding rules and principles or reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Estate of Nielsen at 40.


The surviving spouse claimed that the Estates Code does not specifically authorize payment of the family allowance from the entire community estate. Neither the surviving spouse nor the court could locate any case authority supporting this argument. However, the court discussed two cases which held that the family allowance is chargeable against the full community estate. Pace v. Eoff, 48 S.W.2d 956, 963 (Tex. Comm’n App. 1932, judgm’t adopted) and Miller v. Miller, 235 S.W.2d 624, 628-29 (Tex. 1951). The court then compared the statute construed in these cases with the equivalent Probate Code and Estates Code sections and determined they are substantially similar. Thus, “the Legislature is presumed to have intended that courts construe the Estates Code regarding the family allowance consistently with those decisions.” Estate of Nielsen at 44.


Moral:  If the community estate is sufficient to pay the family allowance, the court may properly order it to be paid out of the full community rather than just the deceased spouse’s half.