Failure to Make Reasonable Provision For Dependents

businesswoman signing an official document

What can you do if the person you depended on for your financial needs and care dies unexpectedly? Even if you anticipate receiving an inheritance, the money you receive could be tied up in court for months, or even more than a year. The failure to make reasonable provision for dependents can create a lot of stress and financial strain for the deceased’s closest family members. Fortunately, there is an option to help pay for their support under Florida law.

What Happens in a Case of Failure to Make Reasonable Provision for Dependents?

People generally want to provide for their close family members after their death. Most people’s Wills and estate plans leave substantial gifts to their spouses, children, and other dependents. If a person has minor children, their estate planning documents may also include a guardianship designation and other provisions to make certain those who depend on them are taken care of.

But the truth is that probate administration takes time. Florida probate cases can sometimes take more than a year to properly inventory, liquidate, and distribute the estate. In the meantime, dependents can find themselves without the funds to pay for their reasonable living expenses. The Florida family allowance statutes can help close the gap.

What is the Florida Family Allowance?

Florida law has special protections that apply when a person fails to make reasonable provision for their dependents. The Florida family allowance allows a person’s dependents to file a claim in court to help support themselves while the probate process is pending. If granted, a family allowance makes it possible for the personal representative of the estate to distribute money from the deceased’s estate to pay for the dependents’ support and maintenance while the matter goes through probate. This money doesn’t come out of the awards granted to the dependents, unless the deceased’s Will says otherwise. Instead, it comes off the top of the estate, like the payment of the estate’s attorneys, the deceased’s burial costs, and other expenses.

Surviving spouses and certain descendants who live in Florida may also be able to exercise the Florida spousal elective share and the homestead exemption. However, these are separate and apply to the final distribution of the estate, rather than maintenance payments while the case is pending.

Who Can File a Claim for Reasonable Financial Provision?

Not everyone in a person’s household will be able to file a request for family allowance. The only ones allowed to file a claim are the deceased’s surviving spouse and the decedent’s lineal heirs (including ascendants and descendents) the decedent was supporting or was obligated to support. In other words, a family allowance can be filed by the deceased’s:

  • Living husband or wife
  • Lineal heirs (such as children, grandchildren, or aging parents), but only if the decedent was supporting them or was obligated to support them

How Florida Courts Decide Reasonable Financial Provision Claims

If yours is a traditional case, you may be the surviving spouse and file a claim for family allowance for yourself and your minor children. The Court will review your claim and may award you up to $18,000 to be paid to you as the surviving spouse either as a lump sum or over several installment payments.

However, some families don’t live under one roof or fit in traditional structures. If a deceased person is responsible for a child’s support as, for example, a non-custodial parent, the family allowance amount can be split between the surviving spouse and the child’s custodial parent or guardian. If the deceased does not have a surviving spouse, or if that spouse dies while the probate case is pending, then the family allowance can be paid to the person caring for the deceased’s dependents.

How to Make Reasonable Provision for Dependents Outside of Court

Most Florida residents don’t want to force their family to go to court to be able to pay their bills. That’s why a complete estate plan should make reasonable provision for dependents outside of court. There are a number of strategies you can use to remove funds from the probate process and make them available to your dependents immediately or quickly after your death. This may include:

  • Establishing a trust and naming your dependents as beneficiaries
  • Placing assets in a Transfer on Death account or joint bank account held by your spouse
  • Maintaining a life insurance policy for your dependents’ benefit
  • Completing beneficiary designations for retirement accounts or death benefits on pensions
  • Designating a guardian to care for your dependents in your absence

Which one or more of these strategies is best for your family will depend on your financial situation, the nature of your assets, and your dependents’ needs. For example, if your spouse is employed and your children are older, you may need to set less money aside to make reasonable provision for your dependents. You should start planning early to make a reasonable provision for your dependents and keep them from having to file a claim for a family allowance in Florida probate court.

At Harrison Estate Law, P.A., our experienced estate and probate team understands when and how to use Florida probate law to account for a failure to make reasonable provision for dependents. We can help you create an estate plan to avoid such claims, or represent you in probate court to prove your right to a family allowance. We have extended evening and weekend appointments available by request. Contact us here or call 352-559-9828 to get help today.

Categories: Probate