No Will? Part IX: What is “Family Support?”

This blog series explores the problems and complexities that may occur when someone dies without a Will. Prior posts discussed the process for appointing an estate Administrator, the authority that an Administrator may or may not have, whether the Administrator may be required by the court to furnish bond, and an overview of intestate succession and inheritance laws that apply to people who die without Wills. In blog posts five through eight, I discussed the details of intestate succession in terms of the distribution to a surviving spouse, a registered domestic partner, or a live-in romantic partner, and what happens in relation to the rest of your family if you don’t have a Will. This blog post will provide a brief overview of the family support statutes, and my upcoming blog post will describe how this statute may become relevant when someone dies without a Will.

As described in previous blog posts, Washington has a statutory distribution mechanism in place for how property will be distributed in the event someone dies without a Will. However, a court may alter that distribution scheme if a successful petition for family support is filed. Some key questions help explain what family support involves, without going into the nitty-gritty details, nuances and exceptions that may be at issue in any particular case:

1. Who can file a petition for family support? Answer: (1) a surviving spouse; (2) a surviving registered domestic partner; (2) the deceased person’s children, if those children are not the children of the surviving spouse or registered domestic partner.
2. What is the petition for family support requesting? Answer:  Generally, the petition requests that more assets be distributed to the person filing the petition (“petitioner”) than would normally be the case under either the laws of intestate succession or the applicable Will.
3. What types of assets can be awarded? Answer: The award may be made from the deceased person’s community or separate property, and generally involves both probate assets (which could include personal property such as a car, or real property such as a house) and nonprobate assets (which are generally assets with a beneficiary designation, such as an investment account).
4. How much is the award? Answer: The basic award is the lesser of: (a) the total value of real property (including mobile homes); or (b) $125,000 in relation to real property or mobile homes, or $15,000 in relation to personal property.
5. Is the reward set in stone? Answer: No. The judge will have some discretion in setting the amount of the award. RCW 11.54.040 sets forth a number of factors that may result in an increase in the basic award. Specifically, the court may increase the award:

If it is demonstrated to the satisfaction of the court with clear, cogent, and convincing evidence that a claimant’s present and reasonably anticipated future needs during the pendency of any probate proceedings in the state of Washington with respect to basic maintenance and support will not otherwise be provided for from other resources, and that the award would not be inconsistent with the decedent’s intentions, the amount of the award may be increased in an amount the court determines to be appropriate.

In other words, if a surviving spouse or registered domestic partner can show that he or she has no other resources to live on, and the deceased person would have wanted the petitioner to have more assets, the court may order that more assets be distributed than the basic award. Conversely, if the petitioning survivor has other financial resources to fall back on, pursuant to RCW 11.54.050, the court may reduce the basic award for family support accordingly.

6. How does this work in practice? Answer: Tune in to my next blog post to find out!

Photo credit: Susanne Nilsson on Flickr