Special Claims of Spouses (and Others) Against Estates – Family Allowance, Homestead Allowance, and the Exempt Property Allowance
In addition to specific bequests in wills, there are also special statutory claims that spouses and certain others can make against a person’s estate. Notably, these claims can arise whether the deceased person leaves a will or not. When a person dies without a will, the estate passes via intestate succession or intestacy, which we discussed in a prior post. This post will address the basics of these special claims: the family allowance, the homestead allowance, and the exempt property allowance.
The Family Allowance
Virginia law provides certain heirs (the surviving spouse and minor children whom the decedent was obligated to support) with the right to make the family allowance. The purpose of the family allowance is for the maintenance of the surviving spouse and the minor children during the administration of the estate. The family allowance generally provides for a lump sum of up to $30,000.00 in periodic installments not to exceed $2,500 per month for a year.The family allowance is payable to the surviving spouse of the decedent for the use of the surviving spouse and minor children of the decedent (whom the decedent was obligated to support). If there are minor children but no surviving spouse, then the amount is payable to the person having the custody and care of the minor children. If any minor child is not living with the surviving spouse of the decedent, then the family allowance may be made partially to the surviving spouse and partially to the person having the custody and care of the minor child.
The family allowance takes priority over all other claims against the estate. This can provide the claimant with a substantial advantage from a claim priority perspective (meaning who gets paid first) over other creditors of the estate (for example, medical providers or credit card companies).
The family allowance is in addition to any benefit or share passing to the surviving spouse or minor children by intestate succession, by the will of the decedent, or by way of the elective share. This means that the family allowance can be claimed in addition to what may be claimed under a deceased person’s will or by intestate succession, or, with respect to a surviving spouse, what they may claim via the elective share.
If a person entitled to the family allowance dies, then the right to any unpaid allowance terminates.
The Homestead Allowance
The homestead allowance permits a surviving spouse who was domiciled in Virginia to claim a homestead allowance of $25,000. If there is no surviving spouse, then each of the minor children of the decedent is permitted to claim a homestead allowance of $25,000 divided by the number of minor children.
The homestead allowance has priority over all claims against the estate, except the family allowance and the right to exempt property.
Notably, however, Virginia law provides that “[t]he homestead allowance is in lieu of any share passing to the surviving spouse or minor children by the decedent's will or by intestate succession; provided, however, if the amount passing to the surviving spouse and minor children by the decedent's will or by intestate succession is less than $25,000, then the surviving spouse or minor children are entitled to a homestead allowance in an amount that when added to the property passing to the surviving spouse and minor children by the decedent's will or by intestate succession, equals the sum of $25,000.” In other words, generally, a person can take the homestead allowance or what they would receive under a will or by intestate succession, but not both, except under special circumstances.
A surviving spouse cannot claim the homestead allowance if the surviving spouse claims an elective share of the deceased person’s estate pursuant to Virginia Code Section 64.2-302 through 307. Notably, these code sections refer to the prior elective share scheme for deaths of persons prior to January 1, 2017. However, the homestead allowance is in addition to the elective share if the surviving spouse claims the elective share under Virginia Code Section 64.2-308.1 et seq., which is the new elective share scheme for persons passing on or after January 1, 2017.
The Exempt Property Allowance
With respect to the exempt property allowance, Virginia law provides that “the surviving spouse of a decedent who was domiciled in the Commonwealth is entitled from the estate to value not exceeding $25,000 in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects.”
If the deceased person does not leave a surviving spouse, then the deceased person’s minor children, in equal shares, are entitled to such property of the same value.
Notably, if the value of the exempt property chosen, in excess of any security interests therein, amounts to less than $25,000, or if the estate does not have $25,000 worth of exempt property, then the surviving spouse or deceased person’s minor children are entitled to other assets of the deceased person’s estate, if any, to the extent necessary, in order to make up the value of $25,000. In other words, if there isn’t enough personal property to satisfy the exempt property allowance, it can be supplemented by intangible property (like cash or investments).
From a priority perspective, the right to exempt property (and the right to other assets of the deceased person’s estate necessary to make up a deficiency of exempt property in the estate) has priority over all claims against the deceased person’s estate, except the family allowance.
The exempt property allowance is in addition to any share or benefit passing to a deceased person’s surviving spouse or minor children under the will of the deceased person, by intestate succession, or by way of the surviving spouse’s elective share claim.
Source of Payment for the Claims
Assuming one or more of the claims can be made, the question arises from what estate property should the claims be paid?
Virginia law provides that any “[p]roperty specifically bequeathed or devised shall not be used to satisfy the right to exempt property and the homestead allowance if there are sufficient assets in the estate otherwise to satisfy such rights.” This means that if the estate has sufficient assets that are not specifically bequeathed or devised under a will (e.g., property that is not expressly left to a person under a will, such as “I leave my car to my spouse”), then the specifically bequeathed or devised property should not be used to satisfy the claims. Virginia law further provides, however, that “[s]ubject to this restriction, the surviving spouse or the guardian of the minor children may select property of the estate as exempt property and the homestead allowance.” This provides a good degree of discretion for the surviving spouse and minor children with respect to how the claims are paid/made out.
However, if the deceased person’s surviving spouse (or the guardian of the minor children) is unable or fails to make the selections within a reasonable time, or if the minor children have no guardian, then the personal representative may make the selections. Virginia law also permits the personal representative to execute a deed of distribution to establish the ownership of property that is taken as the homestead allowance or exempt property. If executed, the deed must describe the property with reasonable certainty and state the value of each asset included therein.
Under Virginia law, the personal representative has the authority to determine the family allowance in periodic installments or a lump sum. The personal representative also has the authority to pay out estate funds to pay the family allowance and to pay any part of the exempt property or the homestead allowance that is payable in cash.
Virginia law also permits the personal representative or any interested person to petition the circuit court for appropriate relief in the event that they are “aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section." In such a petition to the court, the parties can seek a family allowance award that is different than what the personal representative determined or could have determined. Notably, the petition can be ex parte (meaning the hearing can proceed without notice to the other parties), but the court can require notice and the attendance of interested parties as it may deem appropriate.
Deadline to Claim the Family Allowance, the Homestead Allowance, and the Exempt Property Allowance
Virginia law contains a strict deadline for filing these claims. Any election to take a family allowance, exempt property, or a homestead allowance must be made within one year from the decedent's death.Any election must be made either in person before the court having jurisdiction over probate or administration of the estate, or by a writing that is recorded in the court or the clerk's office thereof.
Potential Waiver of these Claims
The right to a homestead allowance can be waived by a premarital or marital agreement that complies with Chapter 8 of Title 20 of the Virginia Code (Virginia Code Section 20-147, et seq.) or by execution of a waiver that is in writing, mentions the homestead allowance “in conspicuous language”, and is signed by the surviving spouse.The family allowance and exempt property right can also be waived during the lifetime of a deceased person, but only in a marital or premarital agreement that complies with Chapter 8 of Title 20 of the Virginia Code. (Virginia Code Section 20-147, et seq.).
Desertion/Abandonment as a Potential Defense to the Statutory Claims
Defenses can be raised to claims for the family allowance, exempt property allowance, and homestead allowance. One such claim is that the surviving spouse willfully deserted or abandoned the other spouse, and that desertion and abandonment continued until the death of the deceased spouse. Virginia law provides, however, that “If a spouse willfully deserts or abandons the other spouse and such desertion or abandonment continues until the death of the other spouse, the party who deserted the deceased spouse shall be barred of all interest in the decedent's estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance.” If proven, this is a defense to claims for the family allowance, homestead allowance, and exempt property allowance (as well as any claim under intestate succession and the elective share. A willful desertion or abandonment defense is very fact-intensive and requires a close examination and evidence of the relationship between the deceased person and the surviving spouse.
Frequently Asked Questions About Virginia Estate Allowances
How do these claims impact the process of probate for a surviving spouse in Virginia?
Probate for a surviving spouse can be a lengthy, stressful ordeal, especially when waiting for assets to clear the court system. Fortunately, statutory allowances are designed to provide an immediate financial lifeline.
When a deceased person passes away, a widow or minor children can claim up to a combined $80,000 in priority assets before general debts or other inheritances are distributed. While these claims are still a part of the probate estate, meaning they must be formally elected through the court, they bypass the usual requirement to wait for creditor clearance. Because they hold absolute legal priority over standard debts, the personal representative can distribute these maintenance funds relatively quickly while the rest of the estate slowly moves through the probate courts.
What happens to these estate claims if a spouse dies before a divorce is finalized?
If a partner passes away while a divorce lawsuit is still pending in court, the surviving partner is still legally considered a spouse under Virginia law. You are legally married until a judge signs the final divorce decree.
Consequently, a surviving spouse can still file claims against the deceased partner's estate for the family, homestead, and exempt property allowances. However, these rights are highly volatile in a split; they can be completely defeated if the couple previously signed a separation agreement containing a valid waiver of estate rights, or if the court finds that the surviving partner willfully deserted or abandoned their spouse prior to their death.
What happens if the estate lacks physical assets to satisfy the exempt property allowance?
The exempt property allowance gives a widow (or the deceased person's minor children) the legal right to claim up to $25,000 in excess value of household furniture, automobiles, appliances, and personal effects.
However, if the household goods are worth very little, or if the estate simply doesn't have $25,000 worth of tangible personal property, the law provides a safety net. You are legally entitled to select other assets from the estate, such as cash from a bank account or pieces of an investment portfolio, to bridge the gap and fully satisfy the $25,000 exempt property allowance threshold.
If the deceased spouse was drowning in debt, can credit card companies wipe out my allowances?
No. These statutory protections create an absolute legal shield for a widow and minor children against outside lines of credit. Under Virginia law, the Family Allowance holds the absolute number-one priority spot over all other claims against the estate. The exempt property allowance and homestead allowance sit immediately behind it.
Even if the deceased spouse died completely insolvent with hundreds of thousands of dollars in credit card debt, medical bills, or personal loans, your statutory allowances must be paid out first before a single creditor can collect a copper penny.
Do I have to choose between the Homestead Allowance and what my deceased spouse left me in their will?
Generally, yes, unless what you were left is worth less than $25,000. The Homestead Allowance is legally "in lieu of" (takes the place of) any wealth passing to you via a will or intestate succession.
- Scenario A: If the will leaves you a $50,000 cash bequest, claiming the $25,000 Homestead Allowance is a poor strategic move because it replaces your larger inheritance.
- Scenario B: If the will leaves you only $10,000, you can use the Homestead Allowance to "top off" your inheritance to the $25,000 statutory minimum.
- Note: Unlike the homestead rules, the Family Allowance and exempt property allowance are always paid in addition to whatever you inherit under the will.
Can a separated or estranged spouse claim against a deceased spouse?
Whether a separated or estranged spouse can successfully claim against a deceased spouse's estate depends entirely on the formal legal status of the marriage and their conduct prior to the death:
- Pending Divorce: If a couple is separated or a divorce is actively pending in court, the surviving partner is still legally considered a spouse until a judge signs the final divorce decree. Therefore, they technically retain the right to file for the family, homestead, and exempt property allowances.
- Separation Agreements: These rights are completely defeated if the couple signed a separation agreement during their lifetime that contained a valid, legally compliant waiver of estate rights.
- Desertion and Abandonment: If an estranged spouse willfully deserted or abandoned their partner, and that abandonment continued uninterrupted until the partner's death, they are completely barred from receiving any interest in the estate. This includes losing all rights to intestate succession, the elective share, the family allowance, the exempt property allowance, and the homestead allowance. Proving willful desertion is highly fact-intensive and requires clear evidence regarding the nature of the couple's relationship.
If you are facing an estate dispute in Virginia, including a dispute about claims for the family allowance, the exempt property allowance, or the homestead allowance, you should promptly consult with experienced trust and estate dispute counsel.
About Our Team
Whiteford offers sophisticated, experienced counsel on estate, trust, and fiduciary dispute matters, including will contests, challenges to beneficiary designations, and pay-on-death and transfer-on-death designation disputes.
When an estate dispute is on the horizon, the stakes are personal and the legal questions are complex. Whiteford’s Estates, Trusts, & Fiduciary Litigation Practice Team in Richmond, Virginia, helps executors, trustees, heirs, and beneficiaries navigate these disputes, from early warning signs through trial. Our attorneys handle claims involving undue influence, fraud, lack of testamentary capacity, breach of fiduciary duty, and contested transfers of assets, as well as, guardianship and conservatorship proceedings and will and trust interpretation.
Brett C. Herbert is a partner at Whiteford, Taylor & Preston LLP in Richmond, Virginia. Brett is a litigator and member of the Estates, Trusts, & Fiduciary Litigation Practice Team who represents clients in will contests, trust challenges, and breach of fiduciary duty claims involving executors and trustees, among other similar claims. He also handles guardianship and conservatorship proceedings, including both routine and contested matters. Brett has been recognized as a Virginia Super Lawyers "Rising Star" and named Best Lawyers in America® Ones to Watch in Trusts and Estates. Brett can be reached at BHerbert@whitefordlaw.com and (804) 977-1242.
Gregory S. Bean is a partner at Whiteford, Taylor & Preston LLP in Richmond, Virginia. Greg is a litigator and member of the Estates, Trusts, & Fiduciary Litigation Practice Team who represents clients in will contests, trust challenges, and breach of fiduciary duty claims involving executors and trustees, among other similar claims. His practice extends to will and trust interpretation, guardianship and conservatorship matters, and power of attorney disputes. Greg holds a Best Lawyers in America® distinction in Trusts and Estates. Greg can be reached at GBean@whitefordlaw.com and (804) 977-1241.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.