§12.7 Family Support

• Jurisdiction: Washington

§12.7 FAMILY SUPPORT

Chapter 11.54 RCW provides an award for support of the decedent's family, commonly referred to as the "award in lieu of homestead."

(1) Basic statutory structure

RCW 11.54.020 provides for an award in the amount of the homestead exemption (currently $125,000) for the surviving spouse or domestic partner and/or the decedent's children. See RCW 6.13.030. The court has the discretion to increase or decrease the amount of the award if warranted by the circumstances. RCW 11.54.040-.050. It is to be treated as a claim of a general creditor but has priority ahead of all other creditor claims. RCW 11.54.060.

(a) Increased award

To receive an increase in the award, the claimant must satisfy the court by clear, cogent, and convincing evidence that the claimant's present and reasonably anticipated future basic support cannot be otherwise met during the pendency of the probate from other resources, and that an increase in the award is not inconsistent with the intentions of the decedent. RCW 11.54.040.

A petition to increase the award may be brought at the same time as the petition for the basic award. The court will consider several factors in determining whether the basic award should be increased. These factors include the resources available to the claimant and the claimant's dependents, resources reasonably expected to be available to the claimant and the claimant's dependents during the pendency of the probate, income from present or future employment, and other benefits from the decedent's probate and nonprobate estate.

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(b) Decreased award

Similarly, the court may reduce the amount of the award if the claimant is entitled to receive probate and nonprobate property (including proceeds from insurance on the decedent's life). The same factors set forth in RCW 11.54.040 will be considered in this determination. RCW 11.54.050.

A claim under Chapter 11.54 RCW takes priority over all other claims against the estate, and the claimant is deemed to be a general creditor of the estate. However, any amount in excess of the basic award is not immune from a lien for medical costs of the decedent as provided under RCW 43.20B.080. RCW 11.54.060. Furthermore, the award, including an increased award, is immune from all debts, including all judgments and judgment liens, of the decedent and the surviving spouse, and the entirety of the community property awarded to the surviving spouse is likewise immune. RCW...