JOHN L. DESMIDT AND JOHN RULONG, AS COPERSONAL REPRESENTATIVES OF THE ESTATE OF HERMANES K. DESMIDT, DECEASED, APPELLANTS,
v.
BEULAH DESMIDT, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court affirmed a trial court's award of a family allowance to a surviving spouse from her deceased husband's estate under Florida Probate Code section 732.403, holding that the current statute entitles a surviving spouse to a reasonable allowance without requiring proof of necessity for support, contrary to the pre-1970s version of the statute.
A surviving spouse is entitled to a reasonable family allowance under section 732.403 without regard to necessity for support; the statute was revised in the mid-1970s to remove the 'if necessary for support' language, and reasonableness is established by considering the spouse's actual maintenance and living expenses during estate administration.
[1] A surviving spouse is entitled to a reasonable family allowance out of the decedent's estate for maintenance during administration, regardless of whether the allowance is…
[2] The reasonableness of a family allowance is determined by the surviving spouse's reasonable living expenses during estate administration.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the current family allowance statute "entitles" the surviving spouse to a reasonable allowance and no longer requires proof that the allowance is "necessary for support."”
Establishes the key holding that necessity is no longer required under the revised statute.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHermanes K. DeSmidt died on January 14, 1989, survived by his wife Beulah, with whom he had been married for over thirty years. Both were elderly (Mrs…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Family Allowance cases and more on FLexlaw
ALTENBERND, Judge.
The trial court granted Beulah DeSmidt, the surviving spouse of Hermanes K. DeSmidt, a family allowance from her husband’s estate pursuant to section 732.403, Florida Statutes (1987). The copersonal representatives argue that the surviving spouse is not entitled to the family allowance because she has personal assets and the allowance is not necessary for her support. We affirm the probate order because the current family allowance statute “entitles” the surviving spouse to a reasonable allowance and no longer requires proof that the allowance is “necessary for support.” In this case, the trial court did not abuse its discretion in setting the reasonable allowance at ten monthly payments of $600, which totalled the statutory maximum of $6,000.
At the time of her husband’s death on January 14, 1989, Mrs. DeSmidt was over eighty years old. The couple had been married for more than thirty years. Mrs. DeSmidt testified that she and her husband had maintained separate bank accounts, but that each had contributed toward their living expenses. The couple had apparently enjoyed a comfortable, middle-class lifestyle.
It is undisputed that Mrs. DeSmidt has significant funds in her own checking account and that she could survive on her own funds without any immediate contribution from her husband’s estate. Ultimately, she will receive a substantial portion of the estate. Given this evidence, the coper-sonal representatives argue that Mrs. DeS-midt did not establish a necessity for the family allowance. They believe that Mrs. DeSmidt must deplete her existing funds before any award would be necessary and thus appropriate.
Historically, the copersonal representatives’ argument would have had merit. Before the Florida Probate Code was revised during the mid-1970s, the Code provided for a reasonable family allowance “if necessary for support.” § 733.20(l)(d), Fla. Stat. (1973). This language, however, was removed when the Code was revised. The Code now provides:
In addition to homestead and exempt property, if the decedent was domiciled in Florida at the time of his death, the surviving spouse ... [is] entitled to a reasonable allowance in money out of the estate for [the spouse’s] maintenance during administration.
§ 732.403, Fla.Stat. (1987) (emphasis added).
Although a surviving spouse is entitled to a family allowance without regard to the necessity of the allowance, the reasonableness of the allowance must still be established. A surviving spouse’s needs are relevant in that decision. See Estate of Sage v. Sage, 515 So. 2d 1324 (Fla. 2d DCA 1987). In a case involving very limited living expenses, a reasonable allowance might be extremely small. In this case, however, Mrs. DeSmidt’s evidence concerning her “maintenance during administration,” i.e., her reasonable living expenses, established the reasonableness of this allowance.
Affirmed.
DANAHY, A.C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Valdes v. In re Est. OF Amado Luis Valdes, 913 So. 2d 1229 (Fla. 3d DCA 2005)…ting or was obligated to support during administration of the estate. § 732.403, Fla. Stat. A surviving spouse and qualified lineal descendant are “entitled” to a family allowance without regard to the necessity of the allowance. DeSmidt v. DeSmidt, 563 So. 2d 193, 194 (Fla. 2d DCA 1990). However, the reasonableness of the allowance must still be established. Id. As such, we [*1231] conclude the probate court necessarily retains the authority to re-examine and modify an award, either upward or downward as cir…
Authorities Cited
- Est. OF H. Ransley Sage v. Sage, 515 So. 2d 1324 (Fla. 2d DCA 1987)