PROBATE ‑- FAMILY ALLOWANCE ‑- STEPMOTHER ENTITLED TO FAMILY ALLOWANCE.

PROBATE ‑- FAMILY ALLOWANCE ‑- STEPMOTHER ENTITLED TO FAMILY ALLOWANCE.

Stepmother may be awarded a family allowance if she was living with decedent as a member of his household and was to some extent dependent upon him.

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                                                                   May 14, 1953 

Mr. Daniel S. Bigelow
Assistant Supervisor
Inheritance Tax Division
Tax Commission
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 42

 Dear Sir:

             You have asked our opinion whether pursuant to RCW 11.52.040

             "* * * a family allowance can be made under the statute to a stepmother."

             We conclude that a stepmother may be awarded a family allowance if she was living with decedent as a member of his household and was to some extent dependent upon him.

                                                                      ANALYSIS

             You relate the decedent was not living at his home with his stepmother at the time of his death because he was then confined by illness in a state mental hospital.

             In addition to the awards available in lieu and by way of homestead to the surviving spouse or children of the decedent, RCW 11.52.040 provides for

             "* * * further reasonable allowance of cash out of the estate as may be necessary for the maintenance of the family according to their circumstances, * * *."

             This section (106) has remained unchanged since its enactment, Chap. 156, Laws of 1917; §§ 103 through 105 provided homestead awards to the surviving spouse (§§ 103, 104) and to minor children (§ 105).  The 1951 Legislature amended these latter sections but retained the words "surviving spouse" and "minor children;"  [[Orig. Op. Page 2]] § 106 remained unaltered.  Since the Legislature used widely different language (family) in § 106 from that used in §§ 103 through 105 (surviving spouse and minor children), "family" cannot be construed to be synonymous with the other terms.

             This statute is to be liberally construed,Hooper's Estate, 117 Wash. 463, 201 Pac. 740 (1921).  That case held a surviving wife with no children or dependents is entitled to a family allowance.  Children living in their grandparent's home constitute part of the family of the decedent,Van Duyn's Estate, 129 Wash. 528, 225 Pac. 446 (1924).  A surviving wife who had received an interlocutory decree of divorce before decedent's death may receive a family allowance, but its award lies within the court's discretion,Wind's Estate, 32 Wn. (2d) 64, 200 P. (2d) 748 (1948).  Adequate independent means does not bar award of a family allowance, Pugh's Estate, 22 Wn. (2d) 83, 154 P. (2d) 308 (1944).

             "* * * The word 'family' conveys the notion of some relationship‑-blood or otherwise.  In its most common use, the word implies father, mother and children‑-immediate blood relatives; but the word is also used to designate many other and extended relationships."  Collins v. Northwest Casualty Co., 180 Wash. 347, 39 P. (2d) 986 (1935).

             Other states have also given a broad interpretation to the word "family."  A widow separated from the decedent and living outside of the state comes within the meaning of the word,Parkinson's Estate, 193 Cal. 354, 224 Pac. 453 (1924); a stepfather and stepchildren living together in one house constitute a family,Smith Bros. v. Lucas, 15 S.W. (2d) 27 (Texas, 1928); a married daughter and her husband living with the widow were held to be members of the family inRash's Estate, 256 S.W. 525 (Mo. 1923).  In State v. Arnold, 234 Mo. App. 154, 113 S.W. (2d) 143 (1938), the word family was held to include the mother or an incompetent son and to mean

           "* * * a collective body of persons, living together in one home, in a permanent and domestic character, under one head or management.  And, when thus construed * * * whomsoever it is the natural or moral duty of the head of the family to support, or who is dependent upon him for support, is in legal contemplation entitled to be considered and regarded as a member of the family, * * *."

              [[Orig. Op. Page 3]]

            35        C.J.S. p. 740 states:

             "'Family' conveys the notion of some relationship, by blood or otherwise; and such relation must be of a permanent and domestic character, rather than that of persons abiding temporarily together as strangers.  In legal contemplation, whomsoever it is the natural or moral duty of one to support or is dependent on him for support may be considered and treated as a member of his family, * * *."

             We conclude that the statute requires liberal construction and that the word "family" as used in this context includes household who are to some extent legally or morally dependent upon either one another or the nominal head of the household.  A stepmother can come within this definition as readily as a natural mother.  That compelling circumstances arose prior to the death of the decedent necessitating his absence from the family abode does not alter the status of the members of the family.

 Yours very truly,
DON EASTVOLD
Attorney General 

KEITH GRIM
Assistant Attorney General