Texas Estates Code 353.105 – Payment of Family Allowance
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(a) The executor or administrator of an estate shall apportion and pay the family allowance in accordance with this section.
(b) If there is a surviving spouse and there are no minor children or adult incapacitated children of the decedent, the executor or administrator shall pay the entire family allowance to the surviving spouse.
Terms Used In Texas Estates Code 353.105
- Child: includes an adopted child, regardless of whether the adoption occurred through:
(1) an existing or former statutory procedure; or
(2) an equitable adoption or acts of estoppel. See Texas Estates Code 22.004 - Court: means and includes:
(1) a county court in the exercise of its probate jurisdiction;
(2) a court created by statute and authorized to exercise original probate jurisdiction; and
(3) a district court exercising original probate jurisdiction in a contested matter. See Texas Estates Code 22.007 - Decedent: A deceased person.
- Estate: means a decedent's property, as that property:
(1) exists originally and as the property changes in form by sale, reinvestment, or otherwise;
(2) is augmented by any accretions and other additions to the property, including any property to be distributed to the decedent's representative by the trustee of a trust that terminates on the decedent's death, and substitutions for the property; and
(3) is diminished by any decreases in or distributions from the property. See Texas Estates Code 22.012 - Executor: A male person named in a will to carry out the decedent
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Minor: means a person younger than 18 years of age who:
(1) has never been married; and
(2) has not had the disabilities of minority removed for general purposes. See Texas Estates Code 22.022 - Person: includes a natural person and a corporation. See Texas Estates Code 22.027
(c) If there is a surviving spouse and all of the minor children and adult incapacitated children of the decedent are also the children of the surviving spouse, the executor or administrator shall pay the entire family allowance to the surviving spouse for use by the surviving spouse, the decedent’s minor children, and adult incapacitated children.
(d) If there is a surviving spouse and some or all of the minor children or adult incapacitated children of the decedent are not also children of the surviving spouse, the executor or administrator shall pay:
(1) the portion of the entire family allowance necessary for the support of those minor children to the guardian of those children; and
(2) the portion of the entire family allowance necessary for the support of each of those adult incapacitated children to the guardian of the adult incapacitated child or another appropriate person, as determined by the court, on behalf of the adult incapacitated child if there is no guardian.
(e) If there is no surviving spouse and there are minor children or adult incapacitated children of the decedent, the executor or administrator shall pay the family allowance:
(1) for the minor children, to the guardian of those children; and
(2) for each adult incapacitated child, to the guardian of the adult incapacitated child or another appropriate person, as determined by the court, on behalf of the adult incapacitated child if there is no guardian.