Probate Family Allowance Requirements in New Hampshire

At a glance

Requirements one by one

A spouse-only, court-set allowance

RSA 560:1 lets the judge make a reasonable allowance from the personal estate for the surviving spouse's present support. The statute sets no dollar ceiling and no fixed installment or duration formula. It applies whether the decedent died with or without a will.

The allowance section uses “widow,” but RSA 21:3 requires widow, widower, husband, wife, and other marital terms to be read as gender-neutral throughout New Hampshire civil law. Sections 560:1 and 560:2 name no child claimant.

The separate 40-day house-and-sustenance layer

RSA 560:2 permits the surviving spouse to remain in the decedent's house for the first 40 days after death without rent and supplies reasonable sustenance from the estate during that period. The judge must take that sustenance into account when making the § 560:1 allowance. The statute therefore does not support adding the 40-day sustenance again without adjustment.

Court action, procedure, and survival

The cash allowance is discretionary: § 560:1 says the judge “may make” it. Sections 560:1 and 560:2 do not prescribe petition contents, a filing deadline, notice recipients, a mandatory hearing, verification, attachments, or a proof standard. The 40-day occupancy and sustenance language, by contrast, states a direct spouse right for that short period.

RSA 563:2 generally treats a person not proved by clear and convincing evidence to have survived the decedent by 120 hours as having predeceased the decedent when a family-allowance right depends on survival. N.H. Rev. Stat. Ann. § 563:6 lists exceptions for governing-instrument language and several failure-or-duplication problems.

Personal-estate source, creditor priority, and share credit

RSA 560:1 limits the cash allowance's source to the personal estate. It does not give the allowance a separately named creditor priority. RSA 554:19 lists administration costs, funeral expenses, federal preferences, specified state claims, just debts, and finally legacies or heir distributions without naming this allowance as its own class. N.H. Rev. Stat. Ann. § 554:19-b sends an insolvent estate's distribution through that order.

In the decree distributing the personal estate, all or the portion of the allowance the judge finds reasonable is accounted as part of the spouse's distributive share. Section 560:1 applies the same credit when the spouse elects under § 560:10 rather than taking under the will.

What trips people up

• A 40-day right is not a 40-day cap on the judge-set allowance. Section 560:2 fixes the housing-and-sustenance period; § 560:1 gives no matching duration for the present-support allowance.
• Chapter 560 contains a broad marital-conduct bar. N.H. Rev. Stat. Ann. § 560:19 denies every estate interest or portion, except a will gift, when the decedent was justifiably living apart at death because the survivor committed conduct constituting cause for divorce. That language should be checked before assuming a separated spouse qualifies.
• The allowance is not automatically extra inheritance. The judge decides how much of it is charged against the spouse's distributive or elective share.

Common questions

May the judge grant an allowance if the decedent left a will?

Yes. RSA 560:1 expressly covers both testate and intestate estates. Separately, § 560:17 presumes that a devise or bequest from one spouse to the other replaces statutory estate rights unless the will shows a different intention.

Does the statute authorize monthly installments?

It does not prescribe a lump-sum or installment method. RSA 560:1 gives the judge authority to make a reasonable allowance but states no payment schedule.

Is the whole allowance always charged against inheritance?

Not necessarily. RSA 560:1 says the whole allowance, or the portion the judge finds reasonable, is accounted as part of the spouse's distributive share and uses the same rule for an election under § 560:10.

Statutes and sources

• N.H. Rev. Stat. Ann. § 21:3 — gender-neutral construction of marital and family terms (accessed August 16, 2026).
• N.H. Rev. Stat. Ann. §§ 560:1-2, :10, :17, and :19 — allowance, 40-day housing and sustenance, will-gift presumption, and marital-conduct bar (accessed August 16, 2026).
• N.H. Rev. Stat. Ann. §§ 554:19 to :19-b — claim-payment order and insolvent-estate distribution (accessed August 16, 2026).
• N.H. Rev. Stat. Ann. §§ 563:2 and :6 — 120-hour survival rule and statutory exceptions; see the official exceptions text (accessed August 16, 2026).