Rights of a Widow, Part I: Widow’s Allowance

August 12, 2013 § 1 Comment

Joe Howard Estes accumulated a considerable estate during his lifetime. On August 3, 2006, he married Sarah (Young) Estes. Not long after the marriage, Joe Howard suffered health complications that resulted in amputation of a leg and surgery to alleviate an arterial blockage. Later in that same year, Sarah moved out of Joe Howard’s home and back into her own home. She filed for divorce a few months after moving out.

Joe Howard died on May 17, 2007. The divorce action was still pending at the time of his death, and he and Sarah had not resumed cohabitation.

Joe Howard had a will, which his children probated, that made no provision for Sarah.

Sarah filed a petition for one year’s support (widow’s allowance) and exclusive possession of homestead property, renounced the will, and asked for appointment of appraisers.

There ensued several years of litigation between Sarah and Joe Howard’s four surviving children. In the course of the litigation, the chancellor granted Sarah a widow’s allowance of $12,000, and awarded her one-fifth of the estate — a child’s share — of some $80,000, from which he subtracted her $12,000 allowance.

The co-executors appealed.

The COA reversed the trial court in the case of Estate of Estes: Estes v. Estes, decided December 11, 2012. In this post, we’ll look at the court’s ruling on the issue of widow’s allowance.

Judge Maxwell’s opinion explains it clearly:

¶10. A widow or widower who was dependent on the surviving spouse is statutorily entitled to a year’s allowance for his or her maintenance and that of the children, if any. Section 91-7-135 imposes a duty on “the appraisers [of an estate] to set apart out of the effects of the decedent, for the spouse and children who were being supported by the decedent, or for the spouse if there be no such children, or for such children if there be no spouse, one (1) year’s provision[.]” Miss. Code Ann. § 91-7-135. This provision may take the form of money “necessary for the comfortable support of the spouse and children, or spouse or children, as the case may be, for one (1) year.” Id.

¶11. Under section 91-7-141, the chancery court has discretion to “apportion the one year’s allowance, or any part of it, according to the situation, rights, and interests of any of the children or the widow, and may direct the payment of any portion of the allowance which may be found necessary or proper to any of them.” Miss. Code. Ann. § 91-7-141; see also Bryan v. Quinn, 233 Miss. 366, 368, 102 So. 2d 124, 125 (1958) (citations omitted) (“The rule is well settled in this State that the widow’s allowance for one year’s support is within the sound discretion of the chancellor.”).

¶12. While the chancellor relied on this statutory authority to award Young a $12,000 widow’s allowance, Young was not “being supported by the decedent” and, thus, not in need of provision from Estes’s estate to make her comfortable. See Miss. Code Ann. § 91-7-135. So we find the award an abuse of discretion.

¶13. Our supreme court has clarified that the statute “relative to the widow’s allowance provides that such allowance shall be set aside to the widow and children who were supported by the decedent.” In re Marshall’s Will, 243 Miss. 472, 479, 138 So. 2d 482, 484 (1962) (emphasis added). The statute places on the widow “the burden of establishing her claim to a year’s support, [by] showing either that she was being supported by [her husband] at the time of his death or that she was away from him without fault on her part.” Id. Here, Young clearly failed to meet this burden.

¶14. It is undisputed that Young left Estes’s home by her own volition after his leg was amputated. And she was living in her own home at the time Estes died. In Byars [v. Gholson, 147 Miss. 460, 465, 112 So. 578, 578-79 (Miss. 1927)] , the Mississippi Supreme Court held that a widow who had been living apart from her husband, without his fault, and who was not supported by him, was not entitled to one year’s support from his estate. Byars, 147 Miss. at 465, 112 So. at 578. We find the same is true here.

¶15. Because we find the widow’s allowance was not supported by substantial evidence of Young’s financial dependence on Estes at the time he died, the chancellor abused his discretion in awarding Young one-year’s support. We reverse the award of a $12,000 widow’s allowance and render judgment against Young’s claim to one-year’s support. [Footnotes omitted]

I think that there is a widespread belief that the widow’s allowance (that term embraces widower’s allowance also) is automatic, and that the only issue is how much. That’s not so, as Estes tells us.

In Part II, we’ll address how the COA dealt with Sarah’s rights due to renunciation of the will.


§ One Response to Rights of a Widow, Part I: Widow’s Allowance

  • joshua says:

    What about an adult child living at home that has been cared for by the decedent? (No physical or mental ailments, just a child who has never “left the nest”)

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