Probate Family Allowance Requirements in Virginia

At a glance

Requirements one by one

Virginia domicile and the supported-minor class

Section 64.2-309 applies when the decedent was domiciled in Virginia. The family allowance covers the surviving spouse and the decedent's minor children whom the decedent was obligated to support. Payment normally goes to the spouse for the spouse and children. If there is no spouse, it goes to the children's custodian; if a child does not live with the spouse, payment may be divided according to their needs.

The companion exempt-property and homestead rights use a broader child rule when there is no spouse: they go to the decedent's minor children without repeating the family allowance's support-obligation qualifier.

Reasonable support, the personal-representative ceiling, and duration

The allowance supplies reasonable maintenance during administration. The personal representative may determine and pay a lump sum up to $30,000 or installments up to $2,500 per month for one year. Those figures limit what the personal representative may determine without court relief; § 64.2-312 expressly lets the circuit court award a family allowance larger or smaller than what the representative determined or could have determined.

The one-year duration is conditional. If the estate cannot discharge all allowed claims, the allowance cannot continue beyond one year. Section 64.2-309 otherwise describes maintenance during the administration period.

Election, administration, and court relief

Entitlement does not eliminate the election requirement. Section 64.2-313 allows an election either in person before the probate court or through a recorded writing acknowledged or proved in the manner required for recording. The deadline is one year after the later of will admission to probate or an administrator's qualification for an intestate estate.

The personal representative can determine and disburse the family allowance without a first-instance court award. A court petition is the relief route for the personal representative or an interested person aggrieved by a selection, determination, payment, proposed payment, or failure to act. The petition may be ex parte, although the court may require notice and convene interested parties. The allowance sections prescribe no verification, attachment list, or mandatory hearing.

Bundled property rights and payment priority

The same procedure includes up to $25,000 in net value of household furniture, automobiles, furnishings, appliances, and personal effects. Other estate assets may make up a shortfall. It also includes a $25,000 homestead allowance for the spouse or, if none, divided among the minor children.

Priority follows that order: the family allowance is ahead of all estate claims; exempt property is next; and the homestead allowance follows those two but precedes other claims. A specific devise is protected from satisfying the exempt-property or homestead right when other estate assets are sufficient.

Inheritance effect, death, and waiver

The family allowance and exempt-property right are additional to benefits under a will, intestacy, or an elective share. The homestead allowance differs: it is generally in lieu of a will or intestate share, with a top-up when that share is below $25,000. For the current post-2017 elective-share system, the homestead allowance is additional to the elective share.

A recipient's death ends the right to any family allowance not yet paid. During the decedent's lifetime, the family allowance and exempt-property rights may be waived only through a marital or premarital agreement satisfying Virginia's agreement statute. Ordinarily that means a signed writing, voluntary execution, and the statute's disclosure protections; qualifying marital agreements operate under the same conditions. Section 20-155 also recognizes marital-agreement terms contained in an endorsed court order or affirmed personally on a court-reporter record without a separate writing.

What trips people up

• $30,000 is the personal representative's ceiling, not an absolute court cap. The circuit court may set a larger or smaller reasonable allowance.
• The claimant deadline does not run from death. It runs one year after the later probate-admission or administrator-qualification event. The separate one-year-from-death recording rule protects a bona fide purchaser of real estate without notice.
• The one-year duration limit depends on estate insufficiency. A sufficient estate is governed by the administration-period language.
• The three bundled rights do not have the same inheritance effect. Family allowance and exempt property are additional; homestead is generally a $25,000 floor against a will or intestate share.
• Death stops unpaid allowance. The recipient's estate does not inherit the remaining family-allowance right.

Common questions

Must the family obtain a court order before the personal representative pays?

No. The personal representative may determine and disburse the allowance within the statutory ceiling. A court petition becomes available when the representative or an interested person is aggrieved by an action or failure to act.

Can an adult child claim the Virginia family allowance?

Not under § 64.2-309. The child must be a minor whom the decedent was obligated to support. The surviving spouse qualifies independently of a child.

Does every election have to be notarized?

No single method is mandatory. Section 64.2-313 permits an in-person election before the court or a recorded writing supported by the acknowledgment or proof that makes a writing recordable.

Statutes and sources

• Va. Code § 64.2-309 — family-allowance eligibility, amount, duration, recipient, priority, inheritance effect, and death. It creates a “reasonable allowance in money out of the estate.” Official current section (accessed 2026-08-03).
• Va. Code § 64.2-310 and § 64.2-311 — bundled $25,000 exempt-property and homestead rights, their priority, and inheritance effects. Official exempt- property section and official homestead section (accessed 2026-08-03).
• Va. Code § 64.2-312 and § 64.2-313 — personal-representative authority, court relief, election method, deadline, and purchaser-protection recording rule. The court may set an award “larger or smaller” than the representative could determine. Official procedure section and official election section (accessed 2026-08-03).
• Va. Code § 64.2-314, § 20-149, § 20-151, and § 20-155 — exclusive agreement route for lifetime waiver and the governing agreement formalities and defenses. Official waiver section and official marital-agreement section (accessed 2026-08-03).