Probate Family Allowance Requirements in Texas

At a glance

Requirements one by one

Eligible family and the own-property limits

Texas covers the surviving spouse, minor children, and adult incapacitated children. Section 353.101 adds two important screens. No award is made for a spouse or child whose own property is adequate for maintenance. An adult incapacitated child must also have been receiving the decedent's support when the decedent died.

An unmarried adult child who remained with the family can qualify for Texas's separate exempt-property set-aside, but that status alone does not place the child in the family-allowance class under Subchapter C.

Amount and the first-year calculation

There is no fixed dollar cap. Section 353.102 requires an amount sufficient for maintenance for one year from death, based on both current facts and what is anticipated during that first year. The court may order a lump sum or installments.

That wording describes the amount to be calculated; it does not say that every installment schedule must run exactly 12 months. The order must state the amount, payment method, and direction to the executor or administrator.

Automatic fixing and the early application

If no early application is filed, § 353.101(a) requires the court to fix the allowance immediately after approval of the inventory, appraisement, and claims list, or after filing of the permitted affidavit in lieu of that inventory.

Before that point, the spouse or a person authorized to act for a minor or adult incapacitated child may file an application and verified affidavit. It must state the one-year amount needed and disclose the spouse's separate property and each child's own property. At the hearing, the applicant carries a preponderance-of- the-evidence burden.

Priority, property payment, and estate shortfall

The family allowance sits immediately behind Class 1. Sections 353.104 and 355.103 identify those preceding claims as court-approved funeral and last- illness expenses within the statutory caps. The allowance is then paid before administration expenses and other claims.

Recipients may take estate personal property at appraised value in full or part payment. Specifically devised property is reached only when other property is insufficient. If willing personal property and estate cash are inadequate, the court orders a sale to raise the needed cash.

Texas can also reach certain nonprobate assets. Section 114.106 makes transfer- on-death realty liable when the probate estate is insufficient, and §§ 115.006 and 116.007 extend that rule to beneficiary-designated vehicles and manufactured homes.

What trips people up

• One year is the maintenance measure, not a statutory dollar ceiling. The court uses existing and anticipated circumstances to set the amount.
• The family allowance and the allowances in lieu of homestead or exempt property are different awards. The latter have separate $45,000 and $30,000 caps; those caps do not limit Subchapter C's family allowance.
• The award is not ahead of everything. Class 1 funeral and last-illness claims are paid first.
• Taking estate property does not erase a valid lien. Section 353.151 keeps the secured debt paid or continued against property used for family support.

Common questions

Can a personal representative file the early application just by holding that office?

Section 353.101(b) names the surviving spouse and people authorized to act for a minor or adult incapacitated child. It does not create a separate early-applicant category merely because someone is the executor or administrator.

What happens if the estate turns out to be insolvent?

Under § 353.153, the spouse and children have absolute title to allowances already set aside or paid, subject to the statute's limited debt exception. Section 353.154 also excludes the family allowance when estate solvency is calculated.

Can specifically devised property be used?

Yes, but only after other available property proves insufficient. The same last- resort condition applies when property is taken directly or sold to raise cash.

Statutes and sources

• Tex. Est. Code § 353.101 — eligibility, automatic fixing, early verified application, proof, and own-property disqualifications. “The court shall fix a family allowance” after the inventory stage. Official Chapter 353 (accessed 2026-08-03).
• Tex. Est. Code §§ 353.102–353.103 and §§ 353.104–353.107 — amount, order, priority, payment routing, property satisfaction, and sale. The amount “must be sufficient” for one year after death. Official Chapter 353 (accessed 2026-08-03).
• Tex. Est. Code §§ 353.151 and 353.153–353.154 — liens and insolvent-estate effect. Recipients have “absolute title” to paid allowances in an insolvent estate. Official Chapter 353 (accessed 2026-08-03).
• Tex. Est. Code §§ 355.102(b) and 355.103 — Class 1 contents and payment order. Allowances are paid second, after the capped funeral and last-illness expenses. Official Chapter 355 (accessed 2026-08-03).
• Tex. Est. Code §§ 114.106, 115.006, and 116.007 — shortfall liability for TOD realty and beneficiary-designated vehicles and manufactured homes. Official Estates Code PDF (accessed 2026-08-03).