Florida Family Allowance: Money for the Surviving Family During Probate
Florida law lets a surviving spouse and dependent children draw up to $18,000 out of the estate while probate is still running. It is called the family allowance, it comes from Florida Statutes § 732.403, and the single most important thing about it is this: unless the will says otherwise, it is not deducted from anything else you inherit. It is money in addition to your share, not an advance against it.
Probate takes months. Bills do not wait months. The family allowance exists precisely for that gap — the period after a death when the mortgage, the utilities, the groceries, and the car payment keep arriving but the estate is not yet in a position to distribute anything.
What Is the Family Allowance in a Florida Probate?
It is a court-ordered payment of estate money to the people the decedent was supporting, made during administration rather than at the end of it. Section 732.403 provides that where the decedent was domiciled in Florida at death, the surviving spouse and the decedent’s lineal heirs whom the decedent was supporting or was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during administration. It sits alongside protected homestead and the other statutory entitlements rather than replacing any of them.
How Much Is the Family Allowance in Florida?
Up to $18,000 in total. That figure is a ceiling for the whole family, not a per-person amount, and not an annual one. The court decides what is reasonable within it based on what the household actually needs to keep going during administration. A family with a mortgage and school-age children will ordinarily be awarded closer to the maximum than a surviving spouse with no dependents and independent income.
Who Can Receive a Florida Family Allowance?
Two groups: the surviving spouse, and the decedent’s lineal heirs whom the decedent was supporting or was legally obligated to support. The statute defines the term for itself, and the definition is wider than most people assume: “lineal heir” means lineal ascendants and lineal descendants of the decedent. That reaches upward as well as downward — a dependent parent or grandparent the decedent was supporting can qualify, not only children and grandchildren. What it does not reach is the collateral line: a sibling, a niece, a nephew, or an unmarried partner cannot claim it however dependent they were.
Adoption is where this most often turns, and it decides whether a claim is possible at all. Under § 732.108(1) an adopted child is a lineal descendant of the adopting parent, so an adopted child the decedent was supporting stands on the same footing as a biological child and can receive the allowance. A stepchild the decedent never adopted is not a lineal descendant — however long that child lived in the home, and however completely the decedent supported them, the claim fails at the definition rather than on the facts. Whether the adoption was ever completed is the question that settles it.
How the Money Is Actually Paid Out
Where there is a surviving spouse living, the allowance is paid to that spouse for the use of the spouse and any dependent lineal heirs. Where there is no surviving spouse, it is paid to the lineal heirs or to the persons having their care.
The statute also handles the split household. Where a dependent lineal heir is not living with the surviving spouse, the court may order the allowance divided between the person caring for that heir and the surviving spouse, according to their respective needs. This comes up constantly in blended families, and it is worth raising in the petition rather than leaving to the court to discover.
Is the Family Allowance Deducted From What You Inherit?
No — and this is the provision most people never hear about. Section 732.403 states that the allowance is not chargeable against any benefit or share otherwise passing to the surviving spouse or to the dependent lineal heirs, unless the will otherwise provides. A widow who receives $18,000 in family allowance and later inherits $300,000 receives $318,000, not $300,000. The allowance is additive.
Why That One Sentence Matters So Much
Because it changes the arithmetic of asking. Families frequently decide not to request the allowance on the theory that it will just come out of their inheritance later, so why create friction with the other beneficiaries. That reasoning is wrong as a matter of law in the ordinary case. Declining to ask does not preserve anything for you; it simply leaves money in the estate that would otherwise have been yours on top of your share.
The exception is real, though, and it is why the will has to be read before the petition is filed. A will can direct that the allowance be charged against the recipient’s share. Where it does, the calculus genuinely changes, and that is a conversation to have before filing rather than after.
Does the Family Allowance Come Before the Decedent’s Creditors?
Before some of them, and after others. Florida sets a strict order of payment in § 733.707, and the family allowance is Class 5 of eight. It is paid after the costs and expenses of administration, after funeral expenses up to $6,000, after debts and taxes carrying federal preference, and after the reasonable and necessary medical and hospital expenses of the last 60 days of the decedent’s illness. It is paid before child-support arrearages, before business debts incurred after death, and before the general body of creditors.
What That Priority Means in a Thin Estate
| Class | What gets paid |
|---|---|
| 1 | Costs and expenses of administration, personal representative and attorney compensation |
| 2 | Reasonable funeral, interment and grave marker expenses, capped at $6,000 |
| 3 | Debts and taxes with preference under federal law |
| 4 | Reasonable and necessary medical and hospital expenses of the last 60 days of illness |
| 5 | Family allowance |
| 6 | Arrearages from court-ordered child support |
| 7 | Debts from continuation of the decedent’s business |
| 8 | All other claims |
In a healthy estate the ordering is academic — there is enough for everyone and the allowance is simply paid. In a thin or insolvent estate it decides everything. A surviving spouse in that situation should be looking at the whole protective package rather than the allowance alone, because exempt property under § 732.402 and Florida’s constitutional homestead protection frequently deliver far more than $18,000 and sit outside the creditor queue in a way the allowance does not.
Can Adult Children Receive a Family Allowance?
Sometimes. The test in § 732.403 is not age, it is support: the lineal heir must be someone the decedent was supporting or was obligated to support. A 30-year-old with a disability who lived with and was maintained by the decedent fits that description. A financially independent adult child who had not received support in a decade does not, however close the relationship was. Where an adult child is claiming, the petition should carry evidence of actual support — deposits, shared accounts, the household arrangement — rather than the relationship alone.
Can the Allowance Be Paid in Installments?
Yes. The court may order the allowance paid as a lump sum or in periodic installments, and installments are often the better request. The purpose of the statute is maintenance during administration, so monthly payments matched to the household’s actual shortfall tend to be easier to justify than a single sum, and they are easier for a personal representative to manage against the estate’s cash position. If the immediate problem is a specific bill — a mortgage arrears figure, a tuition payment — a lump sum is the more sensible ask, and the petition should say why.
What if the Will Says the Allowance Comes Out of Your Share?
Then the default flips and the allowance genuinely does reduce what you ultimately receive. Section 732.403 makes the non-chargeable rule subject to the will. This is not common, but it appears in wills drafted where a testator anticipated a second-marriage dynamic and wanted to cap the surviving spouse’s total take.
It is also a reason to look at the whole picture rather than the allowance in isolation. A spouse facing a will drafted to minimise them has other and much larger remedies — the elective share being the obvious one. Where the will is that hostile, the allowance is rarely the main event.
Does the Family Allowance Apply if the Decedent Lived in Another State?
No. Section 732.403 opens with the condition that the decedent was domiciled in Florida at the time of death. A Florida ancillary administration for a decedent who was domiciled in New York or Ohio does not carry a Florida family allowance, however much Florida property is involved. Whether the home state offers something equivalent is a question for counsel there. Where domicile is genuinely arguable — a snowbird who split the year — the domicile determination decides more than which court hears the case, and our page on the out-of-state executor in Florida sets out the evidence that settles it.
Do You Need a Lawyer to Request a Family Allowance?
In practical terms, yes. The allowance is obtained by petition to the probate court, and Florida Probate Rule 5.030 already requires a personal representative to be represented by a Florida-admitted attorney except in narrow circumstances. Where the surviving spouse is not the personal representative — which is exactly the situation where the allowance tends to be contested — the spouse is a separate interested person filing against an estate someone else controls, and doing that unrepresented against a represented personal representative is not a fair fight.
The Allowance Ends If the Recipient Dies
Section 732.403 contains a clause that matters in exactly the situation where the allowance is most needed: the death of any person entitled to a family allowance terminates the right to the part of the allowance not yet paid. An elderly surviving spouse in poor health who is awarded $18,000 in monthly installments and dies after receiving $6,000 does not pass the remaining $12,000 to her own estate. It simply stops.
That is a practical argument for requesting a lump sum rather than installments where the recipient’s health is uncertain, and for filing the petition early rather than waiting to see how the administration develops.
Where the Family Allowance Fits Among the Other Spousal Protections
The allowance is one of four separate protections, and they stack. Section 732.2105 says the elective share is in addition to homestead, exempt property, and allowances; § 732.402(4) says exempt property is in addition to protected homestead, statutory entitlements, and anything passing under the will or by intestacy; and § 732.403 opens by saying the allowance is in addition to protected homestead and statutory entitlements. Nothing here is an either-or.
| Protection | What it gives | Statute | Deadline |
|---|---|---|---|
| Family allowance | Up to $18,000 in cash during administration | § 732.403 | None stated; request early |
| Exempt property | Household furnishings up to $20,000, two motor vehicles, all § 529 college plans, all § 112.1915 benefits | § 732.402 | Later of 4 months after service of the notice of administration, or 40 days after a proceeding affecting the estate ends |
| Homestead | Life estate by default, or an elected undivided one-half as tenant in common | § 732.401 | 6 months from death to elect the one-half interest, and it is irrevocable |
| Elective share | 30% of the elective estate | § 732.2065 | Earlier of 6 months after service of the notice of administration, or 2 years after death |
Read the deadline column twice. The exempt property right is waived if the petition is not filed in time, and the homestead election cannot be extended except in the narrow guardian and attorney-in-fact situation. A surviving spouse who focuses only on the allowance and lets those clocks run has traded $18,000 for considerably more.
Can a Prenuptial Agreement Take the Family Allowance Away?
Yes, and this catches people. Under § 732.702, the family allowance is one of the rights that can be waived by written contract signed before two subscribing witnesses — and a waiver of “all rights” in the property or estate of a spouse, or equivalent language, operates as a waiver of the elective share, the intestate share, the pretermitted share, homestead, exempt property, and the family allowance together.
A single boilerplate sentence in a prenuptial agreement signed decades ago can therefore eliminate every protection on the table above at once. Whether it actually did is a question worth having answered rather than assumed, because the disclosure rules differ sharply depending on timing: a waiver executed before marriage requires no financial disclosure at all, while one executed after marriage requires each spouse to make fair disclosure of their estate to the other. A postnuptial waiver signed without that disclosure is vulnerable in a way a prenuptial one is not.
How to Request the Family Allowance
The allowance comes by petition to the probate court handling the estate, and it is granted by court order rather than paid at the personal representative’s discretion. There is no statutory deadline in § 732.403, but that is not a reason to wait. The purpose is maintenance during administration, so a petition filed after the estate is ready to close asks the court for something the statute no longer has any work to do. Delay also invites the argument that the household evidently managed without it.
What to Bring to the First Meeting
The petition is stronger when it shows the shortfall rather than asserting it. What tends to matter: the household’s recurring monthly obligations — mortgage or rent, utilities, insurance, car payment, groceries, medical; the income the surviving household actually has now that the decedent’s income has stopped; evidence of the support the decedent was providing, such as joint account statements or direct deposits; the household composition, including any dependent lineal heirs and whether they live with the surviving spouse; and the will, if there is one, because of the chargeability exception.
Where a dependent lineal heir lives elsewhere, bring the caregiving arrangement too. The court can apportion the allowance between that heir’s caregiver and the surviving spouse as their needs appear, but only if the petition puts the facts in front of it.
When the Personal Representative Objects
Family allowance petitions are usually granted without much friction in a cooperative estate. They become contested in the predictable situation: a second marriage, where the personal representative is an adult child from the first marriage and the applicant is the surviving spouse. The objection is almost always some version of “she does not need it” or “it will come out of the estate we are inheriting.”
The answer to the second objection is the statute itself, since the allowance is not chargeable against the spouse’s own share unless the will provides otherwise; the beneficiaries’ discomfort is not a legal ground. The answer to the first is evidence of need, which is why the documents above matter. Where this dynamic is already visible, it is usually a signal to look at the whole protective package rather than the allowance alone — the elective share and the homestead election are the larger numbers, and they carry hard deadlines the allowance does not.
Common Misunderstandings About the Florida Family Allowance
“It is an advance on my inheritance.” Not unless the will says so. Section 732.403 makes it non-chargeable by default.
“$18,000 is per year.” It is a total ceiling for the whole family for the whole administration.
“Only minor children count.” The test is support, not age, and the statute reaches lineal ascendants as well as descendants.
“The personal representative can just write me a cheque.” The allowance is ordered by the court. A personal representative who pays it without an order is exposed on the accounting.
“It comes before all the creditors.” It is Class 5 of eight under § 733.707, behind administration costs, funeral expenses, federally preferred debts and taxes, and the last 60 days of medical expenses.
“It applies to any Florida probate.” Only where the decedent was domiciled in Florida at death.
Is a Family Allowance Available in a Summary Administration?
This is the question that decides whether the allowance is worth pursuing in a small estate, and the practical answer is usually no — not because the right disappears, but because the procedure does not fit. A summary administration appoints no personal representative and is designed to conclude in weeks rather than months. There is no meaningful period of administration to be maintained during, which is the thing § 732.403 exists to fund. Where the estate is small enough for summary administration, the surviving family is generally better served by moving quickly on summary administration itself and on exempt property, which is not tied to the length of the proceeding.
That calculation shifted on July 1, 2026, when the summary administration ceiling rose from $75,000 to $150,000. A far larger band of Florida estates now qualifies for the fast track, which means a far larger band of surviving spouses should be asking whether the quicker route serves them better than a formal administration with an allowance attached to it.
How a Court Decides What Is Reasonable
Section 732.403 authorises a reasonable allowance for maintenance during administration, and both halves of that phrase do work. Reasonableness is measured against the household’s actual circumstances rather than against the $18,000 ceiling, so the ceiling is not a target and an award below it is not a loss. What tends to move a court is the gap between what the household needs to keep running and what it now has coming in without the decedent’s income.
Two situations pull in opposite directions. A surviving spouse with no independent income, a mortgage, and dependent children at home presents the strongest case for the full amount, particularly where the estate is liquid enough to pay it without disturbing anything else. A surviving spouse with substantial income of their own, who received the house by survivorship and the accounts by beneficiary designation, is asking a court to award maintenance to a household that is demonstrably being maintained. Both are legitimate petitions; they are not equally likely to produce $18,000.
The size and liquidity of the estate matter too. Courts are understandably more cautious about ordering an allowance out of an estate whose only asset is real property that has to be sold, and more so where creditor claims are still open, because the allowance sits at Class 5 and a premature payment can leave the personal representative exposed.
Talk to a Florida Probate Attorney About a Family Allowance
If your spouse or a parent who was supporting you died as a Florida resident and the estate is in probate, the family allowance is generally the fastest money available to you, and it is rarely the largest. The conversation worth having covers all four protections at once, because three of them carry deadlines and one of them — the homestead election — cannot be extended.
Lorenzo Law represents surviving spouses and dependent family members in probate matters throughout Florida, including Miami-Dade and Broward County. Call 305-224-6811 or reach out through our contact page.
This page explains Florida statutes for general informational purposes. It is not legal advice, and reading it does not create an attorney-client relationship. Statutory figures reflect Florida law in effect as of August 2026.