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