As a surviving spouse have you heard about Georgia’s Law of “Year’s Support” in Decedent’s Estates?
Often surviving spouses have the misconception that the Probate Courts in Georgia (of competent venue) will automatically grant an award of a “Year’s Support” when petitioned for within two years of the death of a spouse. The reality is that a surviving spouse does have legal standing to seek this award, but it is not “automatic.” Any interested party can object (by filing what is called a “Caveat,”) and at that point the surviving spouse must carry of burden of proving her/his case.
The State of Georgia allows the surviving spouse to receive property from a deceased spouse’s estate as a matter of right, and it can be requested in spite of what the deceased spouse’s Last Will and Testament says (and in spite of the deceased spouse’s creditors’ claims) if the surviving spouse feels as if her/his rights were not fulfilled and that additional support is needed for one year after the spouse’s death.
In order to file a Petition for Year’s Support, the surviving spouse, need only establish the status as the surviving spouse.
There is no need to prove that the surviving spouse was economically dependent upon the deceased spouse. The burden, however, is on the surviving spouse, as the “Petitioner,” to show the Court the amount that the surviving spouse needs for one year of sufficient support. In many cases, a surviving spouse who files a Petition for a Years Support may be granted the entirety of the marital home and estate, even though the home and estate may provide more than one year’s support because no one objects or argues against it. If there is a timely objection (“Caveat”) filed, however, the legal burden will be on the surviving spouse to prove to the Court that the surviving spouse truly needs what was requested in that Petition.
The Court will determine an amount that would be sufficient to maintain the standard of living that the surviving spouse had before the death of the deceased spouse, taking into consideration the following:
(1) The other sources of support that the surviving spouse has available. This includes any income the surviving spouse receives from the death of the deceased spouse, such as a military pension, income from social security, life insurance proceeds, continued ownership of joint accounts, stocks, bonds, money in the bank, and any other assets that the surviving spouse retains or receives. The Court will also consider the surviving spouse’s income and the surviving spouse’s earning capacity (how much money the Court believes the surviving spouse is capable of earning if the surviving spouse were working a full-time job);
(2) The solvency of the estate (whether there would be any assets left over after payment of the estate’s debts if the surviving spouse were given the entire estate); and
(3) Any other relevant criteria as the Court deems equitable and proper.
To prove the surviving spouse’s need for the assets requested, the surviving spouse will have the burden of showing the Court the amount needed to sustain the standard of living that the surviving spouse was accustomed to for the twelve months after the death. Showing this involves proving what the surviving spouse’s level of income was before the death (including the income that the surviving spouse has from any sources other than the deceased spouse) and proving to the Court that the surviving spouse’s level of income now is substantially less than it was before the death of the spouse.
The surviving spouse will also need to show expenses that will be or have been incurred by the surviving spouse in the year following the death. The surviving spouse will also be required to show any other sources of income that are available to the surviving spouse to pay those expenses and may also include an amount that could be available to the surviving spouse if he/she should choose to become employed.
How the “solvency” of the estate plays a role in the Court’s decision is a matter of what the Court believes to be fair. Courts prefer that an estate not be left without enough in the estate to cover the estate’s debts and expenses after the granting of a Year’s Support award. The Court will take all of this into consideration.
When there is a timely objection to a Petition for Year’s Support, the surviving spouse will have the burden of convincing the Court that the surviving spouse needs the property the surviving spouse asked for and also must prove that, if the Petition is granted, it will not leave the estate insolvent. This is a high hurdle that a surviving spouse must be prepared to face when seeking an award of Year’s Support from the Probate Court.
Make a Thoughtful and Informed Decision
A Petition for Year’s Support is not always a “Slam Dunk” for a surviving spouse. A surviving spouse must be prepared to face an objection (“Caveat”) to a Petition for an award of Year’s Support. If such an objection is filed, the surviving spouse will have the burden of showing the Court that her/his needs cannot be met with current assets, distributions, pensions, and income, (considering all sources of income). The intent of the deceased spouse may also be considered at a hearing, and if the Last Will and Testament plainly states an intent that is opposed to the wishes of the surviving spouse, the Court may consider that intent as well. Courts are generally opposed to leaving an estate essentially insolvent by granting an award of Year’s Support.
Have Additional Questions? Contact Our Probate Team
Seek good legal guidance from an attorney who has experience in handling these matters in the Probate Courts before pursuing an award of Year’s Support after the death of a spouse. There may be other, less burdensome, alternatives if the circumstances require a different approach. If you have questions, please reach out to us. Brian M. Douglas & Associates’ probate team experts would be happy to help. You can reach us (770) 933-9009 or via our online contact page.