Surviving Spouse Allowance and Missing Marriage Certificates in Montana

Detailed Answer

Under Montana law, a surviving spouse may claim a family or homestead allowance from the decedent’s probate estate even if the will or estate plan makes no provision for such an allowance. These allowances help ensure the spouse has funds to maintain household expenses during probate. The key statute is Montana Code Annotated § 72-1-504 (family allowance) and § 72-1-505 (homestead allowance). You can read § 72-1-504 here: MCA § 72-1-504.

To qualify as a surviving spouse, you must prove your marriage to the decedent. The probate court typically requires a certified marriage certificate as primary proof. If the certificate is incomplete or missing, Montana law does not automatically bar your allowance claim. Instead, you can:

• Obtain a certified copy: Contact the county clerk or the Montana Department of Public Health and Human Services to request a replacement certified marriage certificate.
  Under MCA § 40-1-205, county clerks must keep marriage records and issue certified copies on request.
• Submit secondary evidence: If a certified copy is unavailable, you can present other evidence under Montana’s probate procedures and rules of evidence. Examples include:
  • Affidavits from officiants or witnesses under oath.
  • Church or religious organization records showing the ceremony.
  • Joint tax returns, mortgage documents, insurance policies, or affidavits evidencing cohabitation and spousal status.
• File a motion with the court: Explain why the certificate is missing or incomplete. Ask the probate court to admit secondary evidence. Judges have discretion to accept credible proof if it clearly establishes marriage.

Once the court is satisfied you were legally married, the statutory allowances apply just as they would if you submitted a flawless marriage certificate. However, expect some delay and additional document requests while the court verifies your marital status.

Helpful Hints

• Start your replacement certificate request early—in Montana it can take weeks to process.
• Gather multiple forms of secondary evidence to strengthen your petition.
• Use sworn affidavits from neutral third parties, like neighbors or clergy, to corroborate your marriage.
• Ask the probate clerk for guidance on filing deadlines and required forms.
• Consider consulting a probate attorney if the court challenges your evidence or if other heirs object.

Disclaimer

This article is for general informational purposes only and does not constitute legal advice. Consult a qualified attorney regarding your individual situation.