A surviving spouse in Georgia can ask the probate court to set aside property from the estate for a year of support, and the claim comes ahead of the estate’s ordinary debts.
What the Statute Provides
Under OCGA 53-3-1(c), “[t]he surviving spouse and minor children of a testate or intestate decedent are entitled to year’s support in the form of property for their support and maintenance for the period of 12 months from the date of the decedent’s death.” In re Mahmoodzadeh, 314 Ga. App. 383 (2012). The point is “to protect the family survivors from a reduction in their standard of living while the estate is being settled, at least for one year.”
The petition goes to the probate court handling the estate, within 24 months of the death. If nobody objects, the court sets aside what the petition asks for. If someone objects, the amount is what is “sufficient to maintain the standard of living that the surviving spouse and each minor child had prior to the death of the decedent,” and the petitioner carries the burden of proving it.
You Have to Actually Be the Spouse
An objection can also go to status rather than amount. As Mahmoodzadeh puts it, a caveat may question “whether the applicants are in fact the [surviving spouse] and children of the deceased, for if they are not, no legal year’s support could be set apart to them.”
For example, in Crowther v. Estate of Crowther, 258 Ga. App. 498 (2002), a woman married the decedent in June 2000 and he died that September. The estate’s administrator caveated her year’s support petition, and she admitted in discovery that she had been married to another man at the time and had never divorced him. Because a valid marriage is essential to the claim, and the burden of proving she was the legal spouse was hers, summary judgment against her was affirmed.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!