Sec. 732.403, F.S. reads in relevant part:
[I]f the decedent was domiciled in Florida at the time of death, the surviving spouse and the decedent’s lineal heirs 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. The court may order this allowance to be paid as a lump sum or in periodic installments. The allowance shall not exceed a total of $18,000.
Before the Florida Probate Code was revised, the Code provided for a reasonable family allowance “if necessary for support.” §733.20(1)(d), F.S. (1973). This language was removed when the Code was revised; therefore, a surviving spouse is entitled to a family allowance without regard to the necessity of the allowance. However, the reasonableness of the allowance must still be established. A surviving spouse’s needs are relevant in that decision. In a case involving very limited expenses, a reasonable allowance might be extremely small. See DeSmidt v. DeSmidt, 563 So. 2d 193 (Fla. 2nd DCA 1990). The probate court retains the authority to re-examine and modify an award, either upward or downward as circumstances may require during the course of administration of the estate. See Valdes v. Estate of Valdes, 913 So. 2d 1229 (Fla. 3rd DCA 2005). The death of any person entitled to a family allowance terminates the right to that part of the allowance not paid. Refer to §732.403, F.S. If a recalcitrant personal representative refuses to pay the family allowance, the beneficiary may be able to recover her attorney’s fees for the time spent securing her family allowance. See Hoyt v. Hoyt, 814 So. 2d 1254 (Fla. 2nd DCA 2002).
Because a family allowance is a Class 5 expense of the estate (refer to §733.707, F.S.), the personal representative may be able to defer payment of the family allowance until after payment of the Class 1 – 4 expenses. Additionally, there could be a substantial delay in payment if the estate or revocable trust is involved in protracted litigation.