By Corcoran Smith Law Corp. · Published · Updated
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. How long that wait actually runs, and who controls the money during it, depends on how the estate is being administered. 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. If someone otherwise eligible has reasonable maintenance from other sources and others are entitled, the allowance goes only to those without such maintenance. 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 2026-09-21.
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 | Excluded if other people are entitled and lack reasonable maintenance from other sources |
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 eligibility can depend on other maintenance sources, these applications turn into evidence contests about income and need, and they can be a first signal of the wider contested probate to come.
Prepare for a family allowance attorney consultation
Bring a monthly household budget, recent income and account statements, evidence of financial dependence where relevant, the probate case number if available, and what you know about the estate's assets and debts. Explain which bills are urgent. The court decides eligibility and the amount; a request does not guarantee payment.
A probate attorney can explain the petition and any opposition. If you also dispute your ultimate share, ask whether you need separate inheritance representation. For an ordinary distribution, start with how to receive your inheritance.
What a family allowance attorney actually does
Most people who search for a family allowance attorney are not trying to understand the statute. They have a household that has lost its income, an estate that is frozen, and a bill due. The useful questions at that point are narrow: am I in the entitled group or the discretionary one, what evidence of need will the court want, and how soon can this be heard.
The first question is usually answered in a sentence — a surviving spouse, minor children, and incapacitated adult children who were actually dependent are in the entitled group; other dependent adult children and dependent parents ask the court to exercise its discretion. The second decides how much work the petition is: bank statements, the household’s regular outgoings, and something showing what the estate can bear without prejudicing creditors. The third is where this remedy earns its reputation, because the petition does not wait for the estate to be ready to distribute. It can be brought early and heard early, which is exactly why it is worth asking about in the first weeks rather than the last.
Where it becomes contested, it is nearly always because the allowance reduces what other beneficiaries receive — a second spouse against children of a first marriage, or siblings disputing an adult child’s dependency. That is an evidence contest, and it is the point at which having someone who runs these petitions regularly can help you present the relevant evidence. What that costs, and how fees work in a contested probate, is set out on what our help costs.
Related: how long administration takes, the spousal route out of probate, what a spouse ultimately inherits, and the representative’s obligations.
The Probate Code sections behind this page
Each section links to its official text at the California Legislature’s own site. The full index of sections covers the rest of the Code.
- Probate Code section 6520
- Setting apart a probate homestead. Read section 6520
- Probate Code section 6540
- Who is entitled to a family allowance. Read section 6540
Before you call: What probate costs · How long it takes · Which court hears it