What Is the Year’s Support Provision in Georgia Inheritance Law?

Georgia has a unique statutory provision that gives a surviving spouse and surviving minor children the right to claim an amount equal to a year’s support and maintenance from the estate of a decedent. The intent of the law is to protect family members from financial hardship following the death of a loved one. The statutory year’s support provisions have significant implications for estate planning and probate administration in Georgia. For anyone with an interest in an estate where year’s support is an issue, talking with a knowledgeable attorney is essential.

Right To Year’s Support

Chapter 53, Chapter 3 of the Georgia Code contains 21 sections that constitute the year’s support laws. The provisions are very complex and govern all aspects of the right to year’s support, including the court process for requesting an award.

Section 53-3-1(c) establishes the right to year’s support: “The surviving spouse and minor children of a testate or intestate decedent are entitled to year's support in the form of property for their support and maintenance for the period of 12 months from the date of the decedent's death.” The term “child” refers to any child who would be entitled to inherit under the laws of intestate succession, so adopted and biological children are included. Section 53-3-2 states that a surviving spouse’s right is barred if the spouse dies or marries prior to filing a petition for year’s support, and that a minor child’s right is barred if the minor marries or reaches the age of 18 years before filing a petition.

The right exists whether or not the decedent left a will. Generally, the right to year’s support is in addition to other inheritance rights of a spouse and minor child under a will or under the laws of intestacy. However, Section 53-3-3 states: “A testator by will may make provision for the spouse in lieu of year's support, in which case the surviving spouse must make an election.” But, if there is a will, and the will does not contain a provision requiring election, the surviving spouse may receive both the inheritance set by the will and the statutory year’s support.

If a court awards year’s support, the support is paid from the estate assets before all other debts and claims, including those of creditors and other heirs and beneficiaries, with very limited exceptions. The support may include any type of property that is part of the probate assets of the estate. When real estate is awarded as part of year’s support, non-secured liens and property taxes for one year may be waived. Jointly-owned property with a right of survivorship, assets with designated beneficiaries other than the estate (such as life insurance and retirement accounts), and assets in a trust are not available to pay year’s support, as they are non-probate property.

Petition for Year’s Support

A surviving spouse or minor child must petition the probate court to apply for year’s support from an estate. (The petition for a child is filed by a parent, guardian, or guardian ad litem.) A surviving spouse may file a petition on their own behalf and on behalf of their minor children. The law establishes specific requirements for the form and contents of petition, which must state the amount of support and type of property requested. The petition also must contain a statement explaining why the requested amount is necessary for support and maintenance.

There is no formula for calculating the amount of support. The court typically considers the standard of living prior to the decedent’s death, the size of the estate, and the immediate and ongoing needs of the spouse and children.

The petition must be filed within 24 months (two years) of the date of death. Notice must be given to all interested parties, such as creditors and other heirs and beneficiaries, who may file objections. If objections are entered, the court holds a hearing to review the petition and the objections. Petitioners and those objecting may present evidence at the hearing. The court makes a determination after hearing all the evidence.

Implications of Year’s Support Laws

The year’s support provisions are an important part of Georgia estate law. In some situations, the process may be used as the distribution method for an estate, such as when an estate has significant debts. If you have an interest in an estate where year’s support is relevant, it is critical to consult with an estate attorney before you make any decisions involving the year’s support process.

Year’s support has significant implications for estate planning as well, particularly for individuals who have a blended family or children from a previous marriage. In these circumstances, the estate plan should anticipate issues relating to year’s support and use estate planning strategies and tools to structure the estate to avoid those issues. For example, in some circumstances, using a trust may ensure that estate assets are protected from a year’s support claim.

Get Help From an Experienced Georgia Estate Law Attorney

At Asset Protection & Elder Law of Georgia, we help clients with situations involving application of the Georgia year’s support laws. To schedule a consultation, contact us through our online form. We serve clients throughout the communities northwest of Atlanta, including in Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County and Paulding County.