As noted in the previous post, the death of the surviving spouse prior to filing for an elective share does not necessarily mean that she forfeits the right. But what about a year’s support? Is it also available if the surviving spouse dies before filing?
The surviving spouse’s right to a year’s support is set forth as follows:
In addition to the right to homestead, an elective share under title 31, chapter 4, and exempt property, the surviving spouse of an intestate, or a surviving spouse who elects to take against a decedent’s will, is entitled to a reasonable allowance in money out of the estate for such surviving spouse’s maintenance during the period of one (1) year after the death of the spouse, according to the surviving spouse’s previous standard of living, taking into account the condition of the estate of the deceased spouse. The court may consider the totality of the circumstances in fixing the allowance authorized by this section, including assets that may have passed to the spouse outside probate.
A separate statute addresses the effect of the surviving spouse’s death:
Death of a surviving spouse within the one-year period for which the allowance is provided under § 30-2-102, for the surviving spouse’s maintenance, shall not affect the vested right of the surviving spouse to the allowance or the ordering thereof by the court.
Unlike the parallel elective share statute, this rule neglects to mention when the election must be made and who can make it. Nonetheless, it appears that, like with the elective share, the surviving spouse’s personal representative may elect a year’s support on behalf of the surviving spouse’s estate, provided the application is timely filed (i.e., within 9 months of the predeceasing spouse’s date of death).
Posted by Joel D. Roettger, JD, LLM, EPLS