Ask the Probate Judge—Statutory Allowances
Rudd, appeared March 13, 2003, Albuquerque Journal, Business Outlook
Reprinted with permission
Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.
Q: You have mentioned in several columns about "statutory allowances for surviving spouses and children." What are these allowances?
New Mexico law contains two sections that reserve a certain amount of money from the estate for spouses and children of decedents who lived in New Mexico.
The surviving spouse is entitled to receive a family allowance of $30,000. If there is no surviving spouse, minor and dependent children are entitled to receive $30,000 divided by the number of decedent's minor and dependent children. Adult children are not entitled to the family allowance.
Creditors cannot touch this $30,000, even if there are debts. The family allowance is in addition to any inheritance that passes to the spouse and minor/dependent children, unless a will states otherwise.
New Mexico law also allows the surviving spouse to receive from the decedent's estate a personal property allowance of $15,000. Personal property includes furni-ture, automobiles, appliances, and personal effects. If there is no surviving spouse, the decedent's children (except those children who are disinherited under a will) are entitled to share the personal property allowance. Minor, dependent, and adult children are all entitled to share the personal property allowance if there is no surviving spouse.
Cash or other assets of the estate can be used to pay the personal property allowance if the decedent's personal property does not equal $15,000 in value. The spouse or children have priority over creditors to the $15,000. This personal property allowance is in addition to any inheritance that passes to the spouse and children, unless a will states otherwise.
These allowances apply whether or not a will exists.
A recent New Mexico case ruled that the surviving spouse is absolutely entitled to the allowances even if the decedent's will expresses contrary intentions. Thus, a spouse cannot, through language in a will, unilaterally disinherit the other spouse from receiving the allowances.
If a spouse voluntarily agrees in writing, before or after marriage, to waive his or her right to the allowances, they could be waived. One may still state in one's will that the surviving spouse may not receive more than the family and personal property allowances.
The assets of decedent's probate estate may be insufficient to pay the allowances. Remember that recipients of "payable on death" accounts, property passing through a "transfer on death" deed, and possibly "transfer on death" stock and security accounts can be compelled to return those assets to pay the allowances.
If a decedent's gross estate were worth less than $45,000, the allowances received by the surviving spouse or children would only be the amount in the estate.
© 2003, Merri Rudd & Albuquerque Journal, All Rights Reserved