2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 3 - Year's Support
§ 53-3-7. (For Effective Date, See note.) Hearing and Determination

1. If no objection is made after the publication of the notice, or, if made, is disallowed or withdrawn, the probate court shall enter an order setting apart as year's support the property applied for in the petition.
2. If objection is made, the probate court shall hear the petition and, upon the evidence submitted, shall determine the property to be set apart as year's support according to the standards set out in subsection (c) of this Code section. If an appeal is taken, pending the appeal the petitioners shall be furnished with necessaries by the personal representative or temporary administrator of the estate, as allowed by the probate court.
3. If objection is made to the amount or nature of the property proposed to be set apart as year's support, the court shall set apart an amount sufficient to maintain the standard of living that the surviving spouse and each minor child had prior to the death of the decedent, taking into consideration the following:
   1. The support available to the individual for whom the property is to be set apart from sources other than year's support, including but not limited to the principal of any separate estate and the income and earning capacity of that individual;
   2. The solvency of the estate; provided, however, that, if the decedent dies having a deposit in a financial institution that is applied to the payment of the funeral expenses and expenses of the last illness of the decedent under subsection (c) of Code Section 7-1-239, any effect such payment may have on the solvency of the estate shall not operate adversely to the surviving spouse or any minor child in the determination of the amount to be set apart as year's support; and
   3. Such other relevant criteria as the court deems equitable and proper.

      The petitioner for year's support shall have the burden of proof in showing the amount necessary for year's support.

(Code 1981, §53-3-7, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2020, p. 377, § 1-8/HB 865.)

- For article discussing decisions involving the year's support provision of the Georgia Code, see 3 Ga. St. B.J. 427 (1967). For article surveying wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008).

This section carries forward and combines provisions from former OCGA Sec. 53-5-2(c) and 53-5-8(b).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, § 2573, former Civil Code 1895, § 3467, former Civil Code 1910, § 4043, former Code 1933, §§ 113-1005, 113-1005.1, 113-1005.2, and 113-1005.3, and former O.C.G.A. § 53-5-9 are included in the annotations for this Code section.

- Award of title to the entire marital residence as year's support exceeded the amount necessary to support the surviving spouse for 12 months from the decedent's death; the surviving spouse's contributions during marriage did not entitle the surviving spouse to support based on an equitable interest in the marital residence. Hunter v. Hunter, 256 Ga. App. 898, 569 S.E.2d 919 (2002).

- When co-executors claimed that the probate court erred by failing to consider the value of the room and board the decedent's spouse received in lieu of wages from the spouse's own employer and that it improperly assumed that the spouse alone would need an amount of money equal to the amount the spouse and the decedent together had spent on living expenses in the last year of decedent's life but the co-executors failed to include in the record on appeal the transcript of the hearing on the decedent's spouse's petition for a year's support, there was no basis in the record for the court to reverse under O.C.G.A. § 53-3-7(c) an award to the spouse. In re Estate of Battle, 263 Ga. App. 73, 587 S.E.2d 140 (2003).

- Undisputed evidence demanded that in light of the decedent's spouse's resources, the spouse's application for a year's support had to be denied and a directed verdict had to be granted against the spouse and in favor of the decedent's children; the evidence showed that during the 12 months following decedent's death, the spouse received $126,000 in cash from the decedent's assets outside of probate and received $22,019 in income for a total of $148,019. Allgood v. Allgood, 263 Ga. App. 177, 587 S.E.2d 377 (2003).

Superior court's order reversing a year's support award in the amount of $30,000, along with title to a vehicle and antique furniture, and instead enforcing an oral agreement for an equal division of the assets of the estate after payment of all expenses was proper as: (1) the wife failed to testify as to the amount of money needed to maintain the standard of living for a period of 12 months after the decedent husband died; (2) the wife presented no evidence of any income earned during the marriage; (3) no evidence documenting the wife's medical expenses incurred during the marriage was presented; and (4) the wife's testimony about the decline in the standard of living was relevant under O.C.G.A. § 53-3-7(c)(3), but provided little guidance to the court. Taylor v. Taylor, 288 Ga. App. 334, 654 S.E.2d 146 (2007), cert. denied, 2008 Ga. LEXIS 322 (Ga. 2008).

Because it appeared from the testimony that a widow's standard of living was improved after receiving an award of year's support after the decedent's death, and that the widow had the resources independent of the year's support to afford those improvements, the award was erroneously entered; thus, the trial court erred in denying a motion for involuntary dismissal filed by the decedent's only child. Anderson v. Westmoreland, 286 Ga. App. 561, 649 S.E.2d 820 (2007), cert. denied, 2007 Ga. LEXIS 676 (Ga. 2007).

- Probate court erred by allowing the objections of a bank and a decedent's parents solely on the basis of adverse title and by denying a year's support to the widow when the widow failed to meet the resulting burden of proof because the probate court lacked the jurisdiction under Ga. Const. 1983, Art. VI, Sec. III, Para. I and O.C.G.A. § 15-9-30 to determine that the relevant money-market account and real property were not part of the estate; despite the jurisdictional limitation and the lack of an appropriate objection, the probate court proceeded to conduct a hearing as to the amount necessary for the widow's support, thereby inappropriately placing upon the widow a burden of proof that was contrary to O.C.G.A. § 53-3-7(a) and otherwise lacking in the absence of the jurisdictionally defective objections to the petition. In re Mahmoodzadeh, 314 Ga. App. 383, 724 S.E.2d 797 (2012).

Superior court erred in setting aside the year's support award for failure to provide evidence of the amount sufficient to constitute a year's support because the only issue properly before the superior court on appeal from the probate court under O.C.G.A. § 5-3-29 was whether or not an objection had been made to the petitioner's petition for year's support, and because the superior court found that no objection had been made to the petition for year's support, the court erred in placing the burden of proof to show the amount sufficient for year's support upon the petitioner as the language of O.C.G.A. § 53-3-7(c) indicated that the petitioner shouldered that burden of proof only once an objection had been made. Garren v. Garren, 316 Ga. App. 646, 730 S.E.2d 123 (2012).

Cited in Mathews v. Rountree, 123 Ga. 327, 51 S.E. 423 (1905); Foster v. Turnbull, 126 Ga. 654, 55 S.E. 925 (1906); Winn v. Lunsford, 130 Ga. 436, 61 S.E. 9 (1908); Young v. Anderson, 19 Ga. App. 551, 91 S.E. 900 (1917); Beddingfield v. Old Nat'l Bank & Trust Co., 175 Ga. 172, 165 S.E. 61 (1932); Rooke v. Day, 46 Ga. App. 379, 167 S.E. 762 (1932); Shingler v. Furst, 52 Ga. App. 39, 182 S.E. 72 (1935); Smith v. Brogan, 207 Ga. 642, 63 S.E.2d 647 (1951); Sanders v. Fulton County, 111 Ga. App. 434, 142 S.E.2d 293 (1965); Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970); Strickland v. Trust Co., 230 Ga. 714, 198 S.E.2d 668 (1973); Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976); Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976); Sudderth v. Bailey, 239 Ga. 385, 236 S.E.2d 823 (1977); Richards v. Wadsworth, 230 Ga. App. 421, 496 S.E.2d 535 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 488 et seq., 717.

- 34 C.J.S., Executors and Administrators, § 472.

- Conclusiveness of statement or decision of accountant or similar third person under contract between others requiring property to be valued by him, 50 A.L.R.2d 1268.