§ 15-11-404 — Family allowance

(1) In addition to the right to exempt property,
the decedent's surviving spouse and minor children who the decedent was
obligated to support and children who were in fact being supported by the
decedent are entitled to a reasonable allowance in money out of the estate for their
maintenance during the period of administration, which allowance may not continue
for longer than one year if the estate is inadequate to discharge allowed claims. The
allowance may be paid as a lump sum or in periodic installments. It is payable to the
surviving spouse, if living, for the use of the surviving spouse and minor and
dependent children; otherwise to the children or persons having the children's care
and custody. If a minor child or dependent child is not living with the surviving
spouse, the allowance may be made partially to the child or the child's guardian or
other person having the child's care and custody, and partially to the spouse, as
their needs may appear. The family allowance is exempt from and has priority over
all claims except claims for the costs and expenses of administration and
reasonable final disposition and funeral expenses, which shall be paid in the priority
and manner set forth in section 15-12-805.

(2) The family allowance is not chargeable against any benefit or share
passing to the surviving spouse or children by the will of the decedent, unless
otherwise provided, by intestate succession, or by way of elective-share. The death
of any person entitled to a family allowance terminates the right to receive an
allowance for any period arising after his or her death, but does not affect the right
of his or her estate to recover the unpaid allowance for periods prior to his or her
death.

Legislative History

Source: L. 94: Entire part R&RE, p. 996, � 3, effective July 1, 1995. L. 2021: (1) amended, (SB 21-006), ch. 123, p. 492, � 13, effective September 7.