Years Support Claims

Years Support Claims

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The proceeding for a year's support from the estate of the decedent is a peculiar proceeding unique to Georgia. It is designed to provide, for a limited time, maintenance and support from the estate of the decedent for those individuals whom the decedent was legally bound to support during life. It is humanitarian in nature and has been called an anomaly. The award may be made in any form of property, including money. There is not (and never has been) a requirement that the spouse and minor children return to the estate any property that has not been used by them for support at the end of the 12-month period.

Years Support Claims

An award of year's support becomes a debt of the estate of the highest priority among debts. Whether the decedent died testate or intestate, whether the estate is solvent or insolvent, and whether the decedent was male or female, the surviving spouse, if any, and the minor child or children, if any, are entitled to a year's support from the estate of the decedent.

Entitlement to a year's support award is a matter of status and is established by demonstrating that the petitioner belongs to one of the two classes of intended beneficiaries: a surviving spouse who has not remarried at the time of filing; a minor child or minor children who remain dependent on the decedent (have not turned 18 or married prior to filing).

If the decedent leaves minor children by different spouses, the judge of the probate court must specify the portion of the property awarded to the children of the former spouse or spouses. Even if the surviving spouse is also the parent of the minor children, the judge has the discretion to make separate awards for the spouse and the children if the judge deems such awards to be in the best interests of the parties. These portions vest separately in the spouse and children.

The following restrictions and limitations apply to every petition for an award of year's support:
  1. All petitions must be filed within 24 months from the date of death of the decedent;
  2. All petitions by or for a surviving spouse must be filed during the time that the spouse has not remarried and during such spouse's lifetime; and
  3. The right of a minor to an award of year's support from the estate of a deceased parent is barred by the marriage or death of the minor or by the minor's attaining the age of 18 years prior to the filing of the petition.

The petition is to be filed in the county of domicile of the decedent. If the decedent was a nonresident who owned property in Georgia, a petition seeking a year's support may be filed in any county in which property sought to be awarded is located. This is true even if the spouse or children are nonresidents.

Where any real property is proposed to be set apart, the petition must fully and accurately describe the real property with a legal description that would be sufficient to pass title to the property under the laws of this state.

There is no necessity for a formal hearing on a petition for year's support when no objection has been filed. However, the judge of the probate court should note the date of death and determine that the 24-month statute of limitations has not run. The judge should also determine that proper notice has been given and that the citation has been published as required by law. Unless there is a legal defect in the petition or it is obvious that someone for whom an award is sought is not eligible, the judge of the probate court has no authority to modify the request and must enter an order setting aside the property as applied for in the petition.

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