Nevada Family Protections in Probate: Homestead, Exempt Property and Family Allowance
Nevada Legal GuidesChange state: 
Idaho
California
ImmigrationPart of my Nevada Wills & Probate Guide.
By Ronald W. Brilliant, Attorney at Law · Licensed in Idaho, Nevada & California · Last reviewed: September 2026 against Nevada Revised Statutes Title 12 (current through the 2025 legislative session)
In This GuideNevada Wills & ProbateTopic 12 of 17: Family Protections
When a person dies leaving a surviving spouse or minor children, Nevada law gives the family certain protections during probate. Except as the statutes otherwise provide, the surviving spouse and minor children may remain in possession of the homestead, the family’s clothing and provisions, and the household furniture, and they are entitled to a reasonable provision for their support, to be allowed by the court (NRS 146.010). A “minor” is a person under 18, and “spouse” includes a domestic partner as defined in Nevada law (NRS 132.230, 132.317).
This page explains the three main protections in chapter 146: setting apart exempt property and a homestead, how a homestead vests, and the family allowance. It matters to surviving spouses, to parents or guardians of the decedent’s minor children, and to the personal representative (the executor or administrator appointed by the court), whose right to possess estate property is subject to these rules (NRS 132.265, 143.020).
When a Premarital Agreement Applies
These family protections do not apply to the extent they conflict with an enforceable premarital agreement between the decedent and the surviving spouse (NRS 146.005).
Setting Apart Exempt Property and the Homestead
The district court (the Nevada court handling the probate) may act on its own or on the petition of an interested person (NRS 132.116, 146.020(1)). Considering the needs and resources of the surviving spouse and minor children, the court may set apart for their use all of the decedent’s personal property that is exempt by law from execution (NRS 146.020(1)).
The court must also set apart the homestead, as designated by the general homestead law, in accordance with NRS 146.050. This applies whether or not a homestead was previously selected (NRS 146.020(1)). A homestead the court can set apart this way is called a probate homestead (NRS 132.280).
Property set apart for the family is not subject to administration (NRS 146.020(1)). If an order sets apart a homestead, a certified copy must be recorded with the county recorder where the property is located (NRS 146.025).
What Happens to the Rest of the Estate
After property is set apart for the family, the court looks at what remains:
- If the remaining assets do not exceed $150,000 and may be set aside without administration under NRS 146.070, the court must set them aside that way. The court may hear both petitions at the same time (NRS 146.020(2)).
- If the remaining assets exceed $150,000 and may not be set aside, the court administers them as if they were the only assets of the estate (NRS 146.020(3)).
- If the request to set apart property is made in the initial petition, the court considers only the remaining assets when deciding whether to order summary administration (NRS 146.020(3)).
Those procedures are explained on the Small Estates page.
Who Ends Up Owning the Homestead
The answer depends on whether a homestead was selected and recorded before the death.
A Homestead Recorded During the Marriage
If either or both spouses selected the homestead during the marriage and recorded it while both were living, as provided in chapter 115 of NRS, it vests absolutely in the survivor when either spouse dies. The statute notes an exception where subsection 2 of NRS 115.060 requires a different result (NRS 146.050(1)).
No Homestead Recorded
If no homestead was selected that way, the court may set apart a homestead for the surviving spouse and minor children for a limited period. The court considers their needs and resources and the nature, character and obligations of the estate (NRS 146.050(2)).
The order must state how long the homestead lasts. It may not extend beyond the surviving spouse’s lifetime or the minority of any of the decedent’s children, whichever is longer (NRS 146.050(2)).
Ownership of a homestead set apart this way vests, subject to the family’s right to use it, as follows (NRS 146.050(2)):
| Homestead set apart from | Vests in | NRS |
|---|---|---|
| The decedent’s separate property | The decedent’s heirs or devisees | 146.050(2)(a) |
| Community property | One-half in the surviving spouse and one-half in the decedent’s devisees; if the decedent made no disposition, entirely in the surviving spouse | 146.050(2)(b) |
Heirs are the people, including the surviving spouse, entitled to inherit when there is no will, and devisees are the people named in a will to receive property (NRS 132.165, 132.100). For how community and separate property pass without a will, see Dying Without a Will.
Protection From Debts
In either case, the homestead is not subject to payment of any debt or liability that existed against the spouses, or either of them, at the time of death, unless the debt is secured by a mortgage or lien (NRS 146.050(3)).
The Family Allowance
A family allowance is money the court allocates from the estate under NRS 146.030 to support the family (NRS 132.140). If all the exempt property has been set apart and it is not enough to support the surviving spouse and minor children, the court may, considering their needs and resources, make a reasonable allowance from the estate for the family’s maintenance according to their circumstances during administration (NRS 146.030(1)).
If the estate is insolvent, the allowance may not last longer than 1 year after letters of administration are granted (NRS 146.030(1)).
If the surviving spouse or a minor child already has reasonable maintenance from other property, and others are also entitled to an allowance, the allowance goes only to those who lack such maintenance, or the court may divide it in a just way (NRS 146.030(2)).
Where the Allowance Falls in Line
The personal representative must pay the family allowance ahead of all other charges except funeral charges, expenses of the last illness and expenses of administration (NRS 146.040). In its discretion, the court may make the allowance effective from the date of death (NRS 146.040).
| Order | Debts and charges of the estate |
|---|---|
| 1 | Expenses of administration |
| 2 | Funeral expenses |
| 3 | Expenses of the last illness |
| 4 | Family allowance |
| 5 and later | Federal priority debts, Medicaid reimbursement, certain wages, judgments and mortgages, then all other demands |
This order comes from NRS 147.195. See Creditor Claims for the full list.
Paying the Allowance
- Estate property may be sold to pay the family allowance (NRS 148.050).
- Personal property needed to provide the allowance until other money arrives may be sold without notice, and title passes without court confirmation (NRS 148.170). See Selling Estate Property.
- If the will provides for, or sets aside property to pay, family allowances, they are paid according to the will to the extent that provision is sufficient (NRS 150.225(1)).
- If property given by will to someone other than the residuary devisees is sold to pay family allowances, all the devisees must contribute, in proportion to their interests, to the devisee whose gift was sold, and the court settles the amounts at distribution (NRS 151.167).
A personal representative with independent administration authority may pay a reasonable family allowance, but must give notice of proposed action before the first payment, before the first payment for a period starting more than 12 months after the death, and before any increase (NRS 143.525). See Independent Administration.
Small Estates With a Surviving Spouse or Minor Children
If the estate is worth $150,000 or less and the decedent left a spouse or minor children, the court must set the estate aside for their benefit, subject to possible reductions (NRS 146.070(3)). The court may give it all to the spouse, all to the minor children, or divide it among them (NRS 146.070(3)).
Property set aside for the spouse or minor children is set aside without paying creditors, except as the court finds necessary to prevent a manifest injustice (NRS 146.070(4)). The court may reduce the amount set aside to the extent the estate plus nonprobate transfers to or for the benefit of the spouse or minor children exceeds $150,000 (NRS 146.070(5)). The details are on the Small Estates page.
Appealing These Orders
An order setting apart property as a homestead or as exempt from execution, and an order granting or modifying a family allowance, may be appealed within 30 days after notice of entry of the order, subject to the statute’s exceptions (NRS 155.190(1)(d), (e)).
How I Can Help
I help surviving spouses and parents of minor children in Nevada probate ask the court to set apart the homestead and exempt property, request a family allowance, and understand how these rights interact with the rest of the estate. I also advise personal representatives on paying the allowance and respecting the family’s right to remain in the home. Request a consultation to discuss your situation.
This page provides general information about Nevada wills and probate law, based on Nevada Revised Statutes Title 12 as of the 2025 legislative session, and is not legal advice. Other Nevada laws, court rules, and case law also affect these matters. Every estate is different; consult an attorney about your situation. Reading this page does not create an attorney-client relationship.