Family Allowance and the Probate Homestead
California does not leave a family with nothing while an estate is administered. A surviving spouse and minor children are entitled to a reasonable family allowance from the estate, and the court may also set apart a probate homestead they can live in during administration.
The problem these solve
Probate is slow by design, and the household that depended on the decedent’s income does not stop needing money while it runs. Accounts are frozen, the representative cannot distribute before debts are settled, and a petition for final distribution may be a year away. Family allowance and the probate homestead are the two mechanisms California uses to bridge that gap, and they are both underused because families assume nothing can be released until the end.
Who is entitled, and who may be given
Probate Code section 6540 separates entitlement from discretion. Entitled to a reasonable family allowance out of the estate, as necessary for maintenance according to their circumstances during administration, are the surviving spouse, the decedent’s minor children, and adult children of the decedent who are physically or mentally incapacitated from earning a living and were actually dependent in whole or in part on the decedent for support. A second group may be given an allowance where the court in its discretion determines it necessary: other adult children who were actually dependent on the decedent, and a parent of the decedent who was actually dependent on them. Where a person otherwise eligible has a reasonable maintenance source of their own, that is taken into account. Section 6520 supplies the companion remedy: on the filing of the inventory or at any subsequent time during administration, the court may in its discretion, on petition, select and set apart one probate homestead.
Sources: Probate Code s.6540 - Who is entitled to a family allowance · Probate Code s.6520 - Setting apart a probate homestead · Verified 2026-08-20.
Entitled versus discretionary
| Who | Status under §6540 |
|---|---|
| Surviving spouse | Entitled |
| Minor children of the decedent | Entitled |
| Adult children incapacitated and actually dependent | Entitled |
| Other adult children actually dependent | Court’s discretion |
| A parent actually dependent on the decedent | Court’s discretion |
| Anyone with their own reasonable maintenance | Taken into account against the request |
What “reasonable” means in practice
The statute fixes no amount. It asks what is necessary for maintenance according to the claimant’s circumstances, which means the court looks at the household’s actual outgoings and what the estate can sustain without prejudicing creditors. A solvent estate with income-producing property supports a larger allowance than one whose only asset is a house that must be sold. The allowance is paid ahead of general distribution, so it comes out of what beneficiaries eventually receive.
One homestead, and it is discretionary
Section 6520 permits one probate homestead, not several, and the court is not obliged to grant it. Timing is flexible — the petition can accompany the inventory or come at any later point during administration — which matters when a family’s circumstances change months in. The chapter governs how the homestead is selected and what interest is set apart.
Where these are contested
Both come out of the estate, so both reduce what other beneficiaries receive, and that is precisely where objections come from. A second spouse seeking an allowance against children of a first marriage is the classic version. So is a dependent adult child whose dependency the siblings dispute. Because the court weighs a claimant’s own resources, these applications turn into evidence contests about income and need, and they can be a first signal of the wider contested probate to come.
Related: how long administration takes, the spousal route out of probate, what a spouse ultimately inherits, and the representative’s obligations.