A decedent’s surviving spouse or domestic partner may petition the court for an award of family support. If the surviving spouse or domestic partner petitions, then the decedent’s children who are not also the children of the surviving spouse or domestic partner (i.e., children from other relationships) may also petition and may share the family support award. If the decedent has no surviving spouse or domestic partner, then his or her minor children, if any, may petition the court for the award. The award may be made from either the decedent’s community property or separate property.
The purpose of the family support award is to provide for a decedent’s surviving spouse or domestic partner and surviving children while the estate is being settled in probate, and, if the estate is insolvent, to pass at least some of the estate’s property or money to a spouse, partner, or children instead of to creditors.
A family support award takes priority over all other claims against an estate, which means that property can be awarded as a family support award even if doing so deprives the estate of sufficient assets to pay the estate’s creditors. However, property subject to an encumbrance (such as a lien or home mortgage) remains subject to the encumbrance even if given as part of a family support award.2 Additionally, the court may not make an award unless the decedent’s funeral expenses, expenses of last sickness, and expenses of administration have been paid or provided for. If an award of family support is made, then the amount of the value of the award is subtracted from the remainder of the decedent’s estate through abatement.
The basic amount of an award of family support is based on the state statute creating homestead rights. A homestead is the real or personal property that a person uses as his or her residence, such as a house, condo, or mobile home. A homestead consists of the residence, appurtenant buildings on the land, and the land itself. The basic amount of a family support is the net value of a decedent’s homestead, up to $125,000. If the decedent did not own a homestead or the homestead is worth less than $125,000, then the petitioner(s) can request that the court grant an additional amount to bring the total basic amount of the award up to $125,000.3
The court may increase or decrease the basic amount of the award depending on specific factors described in the family support statute.4
The family support statute, enacted in 1997, replaced and eliminated other awards that used to be available, including what were called awards of family maintenance and awards in lieu of homestead.