474.260. One year support allowance, property in lieu thereof — allowance exempt from all claims. — 1. In addition to the right to homestead allowance and exempt property, the decedent's surviving spouse and minor children whom the decedent was obligated to support and the 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. 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 or dependent children; otherwise to the children, or person having their care and custody, but if a minor 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. In setting the amount of the support allowance for any persons entitled to such support, the court may consider the previous standard of living of the applicant, the condition of the estate, the income and other assets available to the applicant and the applicant's expenses. The support 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 allowances not yet paid.
2. The court may authorize the recipient of the support allowance to receive any property of the estate in lieu of all or part of the money allowance authorized by this section, and in any case where the court makes an allowance in money, the recipient of the support allowance may select and receive any property of the estate, of a value not exceeding the allowance in money, which shall be in lieu of and which value shall be credited against the allowance. The right of selection provided for in this section is subject to the provisions of section 473.620. The allowance authorized by this section is exempt from all claims.
3. Where real estate is selected pursuant to this section, the provisions of subsections 2, 3, 4, 5 and 6 of section 474.290 shall be followed.
Notes of Decisions
Cited in
48
cases, 1959–2011 · leading case:
Phelps v. Bookwalter, 210 F. Supp. 801 (W.D. Mo. 1962).
Phelps v. Bookwalter, 210 F. Supp. 801 (W.D. Mo. 1962).
· cites it 14× “” Section 474.260 of 26 V.A.M.S. was adopted in 1955 as Section 135 of the new Missouri Probate Code.”
Owen v. Riffie, 323 S.W.2d 765 (Mo. 1959).
· cites it 8× “surviving spouse, when there are no unmarried minor children, then provided : “At any time after the return of the inventory, the court, on application of the surviving spouse * * * of a decedent, shall make an allowance to the surviving spouse * * * of an amount not exceeding…”
In Re Est. of Laspy, 409 S.W.2d 725 (Mo. Ct. App. 1966).
· cites it 4× “It is argued on her behalf that Section 474.260 as amended in 1957, clearly provides for such allowance and contains no exception that it shall be denied "because of any manslaughter conviction of the surviving spouse"; that even if by prior court decisions it had been the rule…”
Roberts v. Est. of Roberts, 664 S.W.2d 634 (Mo. Ct. App. 1984).
· cites it 4× “Roberts filed his claims for a year’s support, § 474.260, RSMo Supp.1982, for a homestead allowance, § 474.”
Matter of Est. of Snyder, 880 S.W.2d 596 (Mo. Ct. App. 1994).
· cites it 4× “On October 2, 1989, the probate court notified respondent of her right to take against the will under § 474.260 RSMo 1986, but she did not respond to the notice.”
Tinnon v. Parkhurst, 821 S.W.2d 575 (Mo. Ct. App. 1992).
· cites it 6× “Section 474.260 requires the trial court in making a support allowance to consider claims of creditors in its consideration of the condition of the estate.”
In re the Est. of Comia, 657 S.W.2d 63 (Mo. Ct. App. 1983).
· cites it 5× “Comia, appeals from a probate court order which ruled that under § 474.260 she “has a legally protecta-ble and possible coexistent interest with the surviving spouse of the decedent in the family allowance,” the extent of which is to be determined at a future hearing.”
Matter of Est. of Savage, 650 S.W.2d 346 (Mo. Ct. App. 1983).
· cites it 2× “By separate applications she sought payment of an allowance for support under § 474.260, payment of a homestead allowance under § 474.”
Est. of Avery v. Comm'r, 40 T.C. 392 (Tax Ct. 1963).
· cites it 3× “*137 The respondent contends that the widow's right to the allowance at the time of the decedent's death was not a vested right of property which would survive as an asset of her estate, and relies upon the provisions of section 474.300 of the Revised Statutes of Missouri,…”
Harris v. Goggins, 374 S.W.2d 6 (Mo. 1963).
· cites it 2× “250, and an allowance of a reasonable amount for a year’s maintenance under Section 474.260, in addition to one half of the estate, does not establish that he will be the sole beneficiary of any amount that may be recovered in this action.”
Edgar v. Fitzpatrick, 369 S.W.2d 592 (Mo. Ct. App. 1963).
· cites it 4× “00) for her maintenance during the period of one year after my death; and I direct my executor hereinafter named to make payment of said sum to her, in cash, within thirty (30) days after the probate of my will, the same to be in lieu of the family allowance provided for by…”
Schell v. Schell, 390 S.W.2d 618 (Mo. Ct. App. 1965).
· cites it 8× “spouse’s position would seem to be that she asked the probate court (a) to determine if the realty in question had been effectually conveyed prior to the decedent’s death; (b) to order the realty inventoried, if in fact the title was vested in the decedent at his death; and (c)…”
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