Tuesday, March 10, 2015

SECTION 2-402. HOMESTEAD ALLOWANCE. Uniform Probate Code

SECTION 2-402. HOMESTEAD ALLOWANCE. Uniform Probate Code
A decedent’s surviving spouse is entitled to a homestead allowance of [$22,500]. If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a homestead allowance amounting to [$22,500] divided by the number of minor and dependent children of the decedent. The homestead allowance is exempt from and has priority over all claims against the estate. Homestead allowance is in addition to any share passing to the surviving spouse or minor or

dependent child by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective share.
As originally adopted in 1969, the bracketed dollar amount was $5,000. To adjust for inflation, the bracketed amount was increased to $15,000 in 1990 and to $22,500 in 2008. The dollar amount in this section is subject to annual cost-of-living adjustments under Section 1-109.
See Section 2-802 for the definition of “spouse,” which controls in this part. Also, see Section 2-104. Waiver of homestead is covered by Section 2-213. “Election” between a provision of a will and homestead is not required unless the will so provides.
A set dollar amount for homestead allowance was dictated by the desirability of having a certain level below which administration may be dispensed with or be handled summarily, without regard to the size of allowances under Section 2-404. The “small estate” line is controlled largely, though not entirely, by the size of the homestead allowance. This is because Part 12 of Article III dealing with small estates rests on the assumption that the only justification for keeping a decedent’s assets from his creditors is to benefit the decedent’s spouse and children.
Another reason for a set amount is related to the fact that homestead allowance may prefer a decedent’s minor or dependent children over his or her other children. It was felt desirable to minimize the consequence of application of an arbitrary age line among children of the decedent.
Historical Note. This Comment was revised in 2008.
The value of any constitutional right of homestead in the family home received by a
surviving spouse or child must be charged against the spouse or child’s homestead allowance to the extent the family home is part of the decedent’s estate or would have been but for the homestead provision of the constitution.]
This optional section is designed for adoption only in states with a constitutional homestead provision. The value of the surviving spouse’s constitutional right of homestead may be considerably less than the full value of the family home if the constitution gives him or her only a terminable life estate enjoyable in common with minor children.

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