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Montana Family Allowance
Support GuideMontana16 min read

Montana Family Allowance

The Montana family allowance lets a personal representative pay a spouse and supported children up to $27,000, or $2,250 a month.

By Settled Editorial

The Montana family allowance is money paid out of a decedent's estate to support the surviving spouse and the children the decedent supported while the estate is being settled. MCA 72-2-414 sets no dollar amount. It promises a reasonable allowance in money, paid ahead of every creditor except the homestead allowance. The one number in the code sits in 72-2-415(1): the personal representative may set the allowance at up to $27,000 as a lump sum, or up to $2,250 a month for 1 year, without asking a judge.

That makes the family allowance the third of three spousal protections in Montana probate. The other two carry fixed figures: a $22,500 homestead allowance under 72-2-412 and up to $15,000 of exempt property under 72-2-413. The three are separate rights with separate rules, and they do not add up to a single sum a family is owed.

Every rule below was read on September 27, 2026 at its section page on mca.legmt.gov, the Montana Legislature's host for the Montana Code Annotated 2025. The Legislature meets in odd years, so the 2025 code is the text in force. Montana probate runs through the district court under 72-1-103(9). This page is general information about Montana law, not advice about one estate, so confirm your figures with the clerk of district court holding the file or with a licensed Montana attorney.

AllowanceAmount in the 2025 codeStatuteWho takes it
Homestead allowance$22,50072-2-412The surviving spouse. If there is none, the minor and dependent children divide it.
Exempt propertyUp to $15,000 above any security interests72-2-413The surviving spouse. If there is none, the children jointly.
Family allowanceA reasonable amount. The personal representative may set up to $27,000 as a lump sum or $2,250 a month for 1 year.72-2-414 and 72-2-415(1)The spouse, for the household. Otherwise the children or whoever cares for them.

Who Qualifies for the Family Allowance

MCA 72-2-414(1) names three groups:

  1. The surviving spouse.
  2. Minor children the decedent was obligated to support. A legal duty of support is enough. The child need not have lived with the decedent.
  3. Children who were in fact being supported by the decedent. This group turns on real support, not age. An adult child with a disability who depended on the parent can fall here.

The allowance is for "their maintenance during the period of administration." It is support money for a household that lost its income, which is why the statute pays it in money rather than in property.

Here is how the payment flows. The allowance is payable to the surviving spouse, if living, for the use of the spouse and the minor and dependent children. If there is no spouse, it goes to the children or to the people who have their care and custody. When a minor or dependent child does not live with the surviving spouse, 72-2-414(1) lets the allowance be split, part to the child or the child's guardian or caretaker and part to the spouse, "as their needs may appear."

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What the $27,000 Figure Means

Read 72-2-415(1) closely, because the number it prints limits the personal representative and not the family. The section says the personal representative "may determine the family allowance in a lump sum not exceeding $27,000 or periodic installments not exceeding $2,250 per month for 1 year," and may pay it, and any cash part of the homestead allowance, from estate funds.

Two things follow.

  1. Inside the ceiling, no court order is needed. A personal representative who finds that a widow and two children need $2,000 a month can decide that and pay it.
  2. Above the ceiling, the district court decides. The same subsection lets the personal representative or any interested person aggrieved by a selection, determination, payment, proposed payment or failure to act petition the court for relief, "which may include a family allowance other than that which the personal representative determined or could have determined."

So a family with a real need above $27,000 can ask for more, and a creditor or heir who thinks the personal representative set it too high can object. The legal test in both directions is "reasonable" under 72-2-414(1). Twelve monthly payments of $2,250 also come to $27,000, so the two forms of the ceiling match.

Montana prints these figures as fixed amounts. Chapter 1 of Title 72 has no section indexing them to inflation, so the numbers in the 2025 code are the numbers that apply. They were last amended by Chapter 313 of the Laws of 2019 (the 2019 revision of the probate code), so an estate for someone who died before that act took effect should be checked against the older text.

How Long the Allowance Runs

The allowance covers "the period of administration." Two limits cut it off.

  • The 1-year limit for a short estate. Under 72-2-414(1) the allowance "may not continue for longer than 1 year if the estate is inadequate to discharge allowed claims." When the estate can pay its debts, the statute sets no 1-year cap, although the personal representative's own authority under 72-2-415(1) still stops at 1 year of installments. Payments past that point need a court order.
  • The death of the person entitled. Under 72-2-414(2), "the death of any person entitled to family allowance terminates the right to allowances not yet paid." Installments already paid stay paid.

Montana's part 4 sets no filing deadline for asking. The practical deadline is the estate itself: once the personal representative has distributed the assets and closed the file, nothing is left to pay an allowance from.

Where the Family Allowance Ranks Against Creditors

This is the reason the allowance matters most in an estate that cannot pay everyone. Here is the order the statutes produce.

  1. Homestead allowance. Exempt from and prior to all claims against the estate (72-2-412).
  2. Family allowance. Exempt from and prior to all claims except the homestead allowance (72-2-414(1)).
  3. Exempt property. Prior to all claims, but the right to other assets that make up a shortfall in exempt property "abates as necessary to permit earlier payment of homestead allowance and family allowance" (72-2-413).
  4. Claims, in the 72-3-807(1) order. Costs and expenses of administration; reasonable funeral expenses together with medical and hospital expenses of the last illness; federal and Montana estate taxes; current and past-due child support under a support order; debts with preference under federal and Montana law; other federal and Montana taxes; and all other claims.

So the family allowance is paid ahead of the attorney, the funeral home and the hospital. Credit cards and personal loans sit at the bottom of the list. The Montana debt payment priority guide walks through the seven claim classes, and the Montana creditor claims guide covers the 4-month notice window that decides which claims are allowed at all.

The Allowance Comes on Top of an Inheritance

This is where Montana departs from several neighboring states, and it changes real money.

MCA 72-2-414(2) says the family allowance "is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided, by intestate succession, or by way of elective share." The homestead allowance (72-2-412) and exempt property (72-2-413) carry the same "in addition to" wording.

Let's break it down with a spouse who takes half the estate under the will. The spouse receives the family allowance, then the half share. The allowance does not come out of the half. The same holds for a spouse inheriting without a will under 72-2-112, and for children.

A spouse who elects against the will keeps the allowances too. MCA 72-2-232(3) says that when the right of election is exercised, "the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts." A summary written for another Uniform Probate Code state can get this backward, so read the Montana section rather than a general one. The Montana surviving spouse rights guide covers the election, its schedule by length of marriage and the deadline.

One special case sits in 72-2-415(2). If a surviving spouse is an incapacitated person and the election is made on the spouse's behalf, the personal representative may add unspent homestead allowance, exempt property and family allowance to the support trust the court sets up under 72-2-242(2).

Reaching Nonprobate Property When the Estate Is Short

Many Montana estates hold little in probate because the house passed by a transfer on death deed and the accounts passed by beneficiary designation. The allowance can still reach that property.

MCA 72-6-112(2) makes a transferee of a nonprobate transfer liable to the probate estate for "statutory allowances to the decedent's spouse and children to the extent the estate is insufficient to satisfy those claims and allowances." Each transferee's liability is capped at the value of what that person received or controls. MCA 72-6-414 applies the same rule to the beneficiary of a transfer on death deed. Joint tenancy real estate is outside 72-6-112, because its definition of nonprobate transfer excludes a survivorship interest in a joint tenancy of real estate.

Three procedural rules decide whether this works:

  1. Start with a written demand. Under 72-6-112(7), no proceeding may begin until the personal representative receives a written demand from the surviving spouse or a child, to the extent statutory allowances are affected.
  2. The personal representative may decline. If the personal representative declines or fails to act, the person who made the demand may bring the proceeding in the estate's name at that person's own expense.
  3. The clock is 1 year from the death. MCA 72-6-112(8) says the proceeding must be commenced within 1 year after the decedent's death.

That 1-year clock is the firmest deadline a Montana family faces on the allowance. A spouse relying on a thin probate estate should raise the demand early. The Montana transfer on death deed guide explains how the deed itself passes the house.

The Allowances Set the Summary Administration Ceiling

The family allowance also sets the size of the smallest estates Montana lets a personal representative close quickly. MCA 72-3-1103 allows the personal representative, "without giving notice to the creditors," to disburse and distribute the estate and close it by sworn statement under 72-3-1104 when the inventory and appraisal show that the entire estate, less liens and encumbrances, does not exceed the sum of:

  • the homestead allowance;
  • exempt property;
  • the family allowance;
  • costs and expenses of administration;
  • reasonable funeral expenses; and
  • reasonable and necessary medical and hospital expenses of the last illness.

Two parts of that sum are fixed: $22,500 plus up to $15,000. The family allowance is a reasonable amount rather than a set figure, and the funeral, administration and last-illness costs vary with each estate. So 72-3-1103 has no single dollar threshold, and it should not be confused with the $100,000 small estate affidavit in 72-3-1101, which requires no personal representative at all. The Montana small estate options guide keeps the two routes apart.

Which State's Law Applies

MCA 72-2-411 answers this in two sentences. Part 4, which holds all three allowances, applies to the estate of a decedent who dies domiciled in Montana. For a decedent domiciled elsewhere, rights to the homestead allowance, exempt property and family allowance are governed by the law of the decedent's domicile at death.

Owning a ranch in Gallatin County does not give the family of someone domiciled in another state a Montana family allowance. That state's law decides. The reverse also holds: a Montana domiciliary's family can claim the Montana allowance even where much of the property sits in another state.

Steps for a Personal Representative

Next steps, in the order they usually come up:

  1. List who is eligible and why. Record the spouse, each minor child the decedent had a duty to support, and any child the decedent was in fact supporting, with the facts that show it.
  2. Estimate need against the estate. Set the allowance at a reasonable figure, and check whether the estate can cover allowed claims, because a short estate caps the allowance at 1 year.
  3. Decide lump sum or installments. Stay within $27,000 or $2,250 a month for 1 year under 72-2-415(1), or petition the district court first for anything larger.
  4. Pay the homestead allowance first. Then the family allowance, then the exempt property shortfall, then claims in the 72-3-807 order.
  5. Document every payment. A written determination and receipts show later that the money went out as an allowance ahead of creditors, not as an early distribution. The Montana executor duties guide puts this beside the rest of the job, and the Montana probate guide covers opening the estate.

The spouse's other two allowances, including who selects the property, are covered in the Montana exempt property guide.

When to Call a Montana Attorney

Most family allowances are set by the personal representative without a hearing. Bring in a licensed Montana attorney when the family needs more than the 72-2-415(1) ceiling, when a creditor or heir objects to the amount, when the estate cannot pay its allowed claims, when the probate estate is thin and a demand against nonprobate transferees under 72-6-112 may be needed within the 1-year window, or when a prenuptial agreement may have waived the spouse's rights. Those are the cases where the order of payment decides who receives what. The Montana probate courts by county page lists the clerk of district court for each county.

Frequently Asked Questions

How much is the Montana family allowance?

MCA 72-2-414 sets no fixed amount. It gives the surviving spouse, the minor children the decedent was obligated to support, and children the decedent was in fact supporting a reasonable allowance in money for their maintenance during administration. The figure in the code is a limit on the personal representative: under 72-2-415(1) the personal representative may set the allowance at a lump sum of up to $27,000 or installments of up to $2,250 a month for 1 year. Anything larger goes to the district court on a petition.

Who can receive a family allowance in Montana?

Three groups under MCA 72-2-414(1): the surviving spouse, the minor children the decedent was obligated to support, and children who were in fact being supported by the decedent. An adult child the decedent was supporting can qualify under the third group. The money is paid to the surviving spouse, if living, for the use of the spouse and the minor and dependent children, or otherwise to the children or the people who have their care and custody.

How long does the Montana family allowance last?

It covers the period of administration. MCA 72-2-414(1) says the allowance may not continue for longer than 1 year if the estate is inadequate to discharge allowed claims. The personal representative's own authority under 72-2-415(1) also runs for 1 year of installments. The death of a person entitled to the allowance ends that person's right to installments not yet paid, under 72-2-414(2).

Is the family allowance paid before creditors in Montana?

Yes. MCA 72-2-414(1) makes the family allowance exempt from and prior to all claims except the homestead allowance. It comes after the $22,500 homestead allowance in 72-2-412 and ahead of every class of claim in 72-3-807, including the costs of administration and funeral expenses.

Does the family allowance reduce a spouse's inheritance in Montana?

No. MCA 72-2-414(2) says the family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will, unless the will says otherwise, by intestate succession, or by way of elective share. MCA 72-2-232(3) repeats the point for a spouse who elects: the homestead allowance, exempt property and family allowance are in addition to the elective-share amounts.

Can a family allowance reach a transfer on death deed or a living trust?

Yes, if the probate estate is short. MCA 72-6-112(2) makes a nonprobate transferee liable for statutory allowances to the decedent's spouse and children to the extent the estate cannot pay them, capped at what that transferee received, and 72-6-414 applies the same rule to a transfer on death deed. The spouse or a child starts with a written demand to the personal representative, and the proceeding must begin within 1 year after the death under 72-6-112(8).

Related Montana Guides

Sources:

It is not legal advice.

Information current as of September 27, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Montana can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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