What is the Discretionary Family Allowance?
The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.
The MUPC contains certain family protection provisions meant to assist with the immediate support of surviving spouses and children. One such family protection provision is the discretionary family allowance (not to be confused with the exempt property statute). Under § 2-404(a) of the MUPC, the personal representative (person in charge of the estate) has the authority to pay a "family allowance" to the surviving spouse and "minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent."
Unless the court orders otherwise, the personal representative's discretionary authority to pay a family allowance is capped at a lump sum of $18,000 or $1,500 per month for a period of one year. M.G.L. c. 190B, § 2-405. This family allowance provision allows for assistance to adult children if the adult children were being supported by the decedent. M.G.L. c. 190B, § 2-404(a).
If there is a surviving spouse and the minor or dependent children do not reside with him or her, the personal representative has authority to pay the family allowance partially to the surviving spouse and partially to or for the benefit of any minor or dependent children "as their needs may appear." M.G.L. c. 190B, § 2-404(a).
Under § 2-404(b) of the MUPC, the "discretionary family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent, unless otherwise provided, by intestate succession or by way of elective share."
The Comment to § 2-404 of the MUPC, states, in part, as follows:
In determining the amount of the family allowance, account should be taken of both the previous standard of living and the nature of other resources available to the family to meet current living expenses until the estate can be administered and assets distributed. While the death of the principal income producer may necessitate some change in the standard of living, there must also be a period of adjustment. If the surviving spouse has a substantial income, this may be taken into account. Whether life insurance proceeds payable in a lump sum or periodic installments were intended by the decedent to be used for the period of adjustment or to be conserved as capital may be considered. A living trust may provide the needed income without resorting to the probate estate.
Obviously, need is relative to the circumstances, and what is reasonable must be decided on the basis of the facts of each individual case.
Nothing in this blog should be considered legal advice as this is a complicated area of the law.
The author Brigitte von Weiss of VON WEISS LAW OFFICE is an estate planning lawyer and elder law attorney serving clients in Easton, MA, as well as nearby towns and cities, including Abington, MA, Attleboro, MA, Avon, MA, Bridgewater, MA, Brockton, MA, Canton, MA, East Bridgewater, MA, Foxboro, MA, Mansfield, MA, North Attleboro, MA, Norwood, MA, Norton, MA, Plainville, MA, Randolph, MA, Raynham, MA, Rehoboth, MA, Rockland, MA, Sharon, MA, Stoughton, MA, Walpole, MA, West Bridgewater, MA, and Whitman, MA.
Brigitte, a graduate of Boston College School of Nursing and an honors graduate of Loyola University of Chicago Law School, stands out from other elder law and estate planning attorneys in that she worked as a registered nurse for four years and earned a Master of Science in Taxation with high distinction from Bentley College. This unique combination of legal, nursing and taxation backgrounds enables Brigitte to provide outstanding legal guidance to her clients in their time of need. Call (508) 238-3005 for a free phone conversation with Brigitte to learn if she can help. You also may reach her through her website at www.vonweisslaw.com.