15-2-402. HOMESTEAD ALLOWANCE. The homestead allowance is exempt from and has priority over all claims against the estate except as hereinafter set forth. The homestead allowance is in addition to any share passing to the surviving spouse or minor or disabled child by the will of the decedent unless otherwise provided in the will, or by intestate succession, or by way of elective share. The amount of the homestead allowance shall be fifty thousand dollars ($50,000). The homestead allowance is not a right to claim ownership of, or succession to, any homestead owned by the decedent at the time of the decedent’s death but is only the right to claim the sum set forth above. The right to a homestead allowance is determined as follows:

(a) If there is a surviving spouse of the decedent, the surviving spouse shall be entitled to a homestead allowance.

(b) If there is no surviving spouse, and there are one (1) or more children under the age of twenty-one (21) years whom the decedent was obligated to support or children who were in fact being supported by the decedent and who are disabled, as provided in 42 U.S.C. section 1382c, then each such minor or disabled child is entitled to a portion of the homestead allowance in the amount of the homestead allowance divided by the number of such minor or disabled children entitled to receive the homestead allowance.

History:

[(15-2-402) 15-2-401, as added by 1971, ch. 111, sec. 1, p. 233; am. 1971, ch. 126, sec. 1, p. 487; am. and redesig. 2001, ch. 294, sec. 3, p. 1040; am. 2004, ch. 123, sec. 1, p. 413; am. 2008, ch. 182, sec. 2, p. 549.]