Detailed Answer
Under Arizona law, a surviving spouse may claim two primary allowances during probate:
- Homestead allowance under A.R.S. § 14-1206 (azleg.gov/ars/14/01206.htm)
- Family allowance under A.R.S. § 14-1211 (azleg.gov/ars/14/01211.htm)
To qualify, the claimant must prove the marriage was valid at the decedent’s date of death (A.R.S. § 25-101, azleg.gov/ars/25/00101.htm). Arizona issues marriage certificates through the county recorder after an officiant returns the signed license (A.R.S. § 25-121, azleg.gov/ars/25/00121.htm).
If the certificate is incomplete or missing (for example, lacking the officiant’s signature, county seal or date), the probate court may question whether the claimant qualifies as a spouse. Without a valid certificate, the court will require alternative evidence, such as:
- Certified transcript or abstract from Arizona Vital Records
- Affidavits from the officiant, county recorder or ceremony witnesses
- Secondary evidence showing cohabitation and joint financial obligations (tax returns, mortgage statements, insurance policies)
Arizona’s vital records statutes (A.R.S. § 36-337 and § 36-340, azleg.gov/ars/36/00337.htm and azleg.gov/ars/36/00340.htm) allow a surviving spouse to petition the Superior Court to correct, amend or reconstruct a lost or defective marriage record. A court order approving the change makes the revised certificate admissible in probate.
If the court finds insufficient proof of marriage, it may deny the homestead and family allowances. In that scenario, the surviving spouse may still inherit an intestate share if qualified under A.R.S. § 14-2101 (azleg.gov/ars/14/02101.htm), but loses the special allowances.
Helpful Hints
- Order a certified marriage transcript promptly from Arizona Vital Records.
- Collect affidavits from the officiant, county recorder or ceremony witnesses.
- Gather joint financial documents showing you and the decedent shared assets.
- File a petition to correct the vital record under A.R.S. § 36-337 to secure an amended certificate.
- Consider consulting an attorney if the probate court challenges your marriage proof.