Probate Family Allowance Requirements in Montana

At a glance

Requirements one by one

Claimants, domicile, and payment routing

Mont. Code Ann. § 72-2-411 applies Part 4 to a Montana domiciliary's estate and sends a nonresident decedent's allowance rights to the law of that person's domicile.

Section 72-2-414 covers the surviving spouse, minor children whom the decedent was obligated to support, and children the decedent was actually supporting. Payment normally goes to the spouse for the spouse and minor or dependent children. If no spouse is living, it goes to the children or caregivers. A child living elsewhere may receive a separate part directly or through a guardian or caregiver according to need.

The $27,000 administrative ceiling and court relief

The family allowance is a reasonable maintenance amount in money from the estate during administration. Under § 72-2-415, the personal representative may determine and pay up to $27,000 as a lump sum or $2,250 per month for one year.

That figure is not the court's ceiling. A personal representative or interested person aggrieved by a determination, payment, proposed payment, or failure to act may petition for appropriate relief, including a family allowance different from what the representative determined or could have determined.

Sections 72-2-411 through 72-2-415 state no special verified or notarized allowance petition, service list, mandatory attachments, proof standard, or mandatory hearing for the initial personal-representative determination.

Duration, property layers, and death

If the estate cannot discharge allowed claims, § 72-2-414 limits family support to one year. The statute does not state the same outside duration for a sufficient estate and gives no separate fixed request deadline. A recipient's death terminates that person's right to family allowance not yet paid.

The companion rights are a $22,500 homestead allowance under § 72-2-412 and up to $15,000 net value in household furniture, automobiles, furnishings, appliances, personal effects, or substitute estate assets under § 72-2-413.

Priority, inheritance effect, and waiver

The homestead allowance has priority over every estate claim. The family allowance follows homestead and has priority over all other claims. Exempt property also has claim priority, but substitute assets used to make up a property deficiency abate as necessary for earlier homestead and family payments.

The family allowance is additional to a will benefit, intestate share, or elective share unless the will provides otherwise. Sections 72-2-412 and 72-2-413 use the same basic additional-benefit structure for homestead and exempt property.

Section 72-2-243 permits the spouse to affirm, modify, or waive one or more rights only in a signed written agreement. Enforceability protections include voluntariness, access to independent representation, a plain-language explanation when the spouse lacked counsel, and adequate financial disclosure.

What trips people up

• The $27,000 figure limits the personal representative, not the court. An aggrieved person may seek a different amount under § 72-2-415.
• One year is an inadequate-estate ceiling. The statute does not state the same outside cap when the estate can discharge allowed claims.
• Death ends unpaid support for every recipient class. Montana gives no special surviving-spouse continuation rule.
• Financial exploitation also causes forfeiture. Mont. Code Ann. § 72-2-813(2) reaches a person who financially exploits the decedent as well as one who feloniously and intentionally kills the decedent, and expressly lists family allowance among the forfeited benefits.

Common questions

Can the allowance be divided when a child lives elsewhere?

Yes. Section 72-2-414 permits part to go to the child, guardian, or caregiver and part to the surviving spouse according to need.

Can specifically devised property fund the family allowance?

Section 72-2-415 protects specifically devised property from satisfying homestead and exempt-property rights when the estate is otherwise sufficient. That sentence does not state the same restriction for the cash family allowance.

What happens to unspent allowances for an incapacitated spouse?

If an elective share is exercised on behalf of an incapacitated spouse, § 72-2-415(2) permits the personal representative to add unexpended homestead, exempt-property, and family-allowance portions to the statutory elective-share trust.

Statutes and sources

• Mont. Code Ann. §§ 72-2-411 through -415 — allowance structure, eligibility, amounts, duration, priority, inheritance effect, personal-representative authority, and court relief; see the official applicable-law, homestead, exempt-property, and determination pages (accessed August 3, 2026).
• Mont. Code Ann. § 72-2-243 — spouse agreements, waiver, counsel access, plain-language explanation, and disclosure (accessed August 3, 2026).
• Mont. Code Ann. § 72-2-813 — forfeiture for financial exploitation or felonious intentional killing (accessed August 3, 2026).