Surviving Spouse Support

When a spouse dies, the law provides several sources of support for the surviving spouse:

Pension Survival Benefits

A surviving spouse, and possibly the children, has a right to support that cannot be prevented by the decedent spouse. The most common form of support is Social Security, which is a government pension plan that provides a pension for the worker, and survivor benefits for the surviving spouse when the worker dies. However, the couple must be married at least 10 years before the surviving spouse can collect the decedent's social security benefits. The amount of the benefit depends on how much the worker has paid into Social Security, and on the age of the surviving spouse. A surviving spouse at full retirement age can collect 100% of the decedent's benefit, while one younger than 60, with a child younger than 16, can collect 75% of the benefit.

Private pension plans operating under ERISA (Employee Retirement Income Security Act of 1974, as modified by the Retirement Equity Act of 1984) also has surviving spouse survivorship benefits, which is in the form of a joint and survivor annuity, consisting of regular payments. However, the worker can request a lump-sum payment, if the spouse agrees. If the worker dies, the surviving spouse will continue to receive the payments. If the worker dies before retirement, the surviving spouse can receive a preretirement survivor's annuity.

The prospective surviving spouse (she must be a spouse; hence the right cannot be waived in a prenuptial agreement) can waive her right to the pension benefits, but she must agree in a signed, notarized statement before a pension plan member for the waiver.

Probate Estate

The other main sources of support for the surviving spouse comes from the decedent spouse's probate estate, which are available regardless of the terms of the will, but the support may be limited by the value of the estate.

Marital Property

In the 10 community property states—Alaska (if the community property option is chosen), Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin—spouses are considered partners; hence, each spouse is entitled to an undivided interest in ½ of the marital property, which is also the community property. Community property consists of all property acquired during the marriage, including the earnings of both spouses, regardless of the amount that each earned or contributed to the marital property. When one spouse dies, the community property is divided in half, allowing the decedent to devise his half of the property to whomever he chooses. However, all property acquired as a gift or as an inheritance is considered the separate property of the gift recipient, and not part of the community property.

The rest of the states treat property of the spouses as separate property (unless the property is held jointly). In separate property states, the spouse has no rights in the other spouse's property unless they get divorced; then the spouse may get some of the other spouse's property in the divorce settlement. However, if one spouse dies, then the surviving spouse may have rights to an elective share of the property. The elective share gives the surviving spouse a minimum amount of the marital property, even if the dead spouse attempted to disinherit the surviving spouse.

The elective share has generally replaced dower and curtesy in separate property states. Dower provided the wife with a life estate and 1/3 of all inheritable or devisable real property. Curtesy is the legal doctrine that allowed the husband to claim a life estate in all of his wife's real property after her death, but only if they had children together. Some jurisdictions, however, did not require legitimate children to be born of the union for the surviving husband to claim curtesy.

Most states have abolished dower and curtesy, especially since they only provided a claim on real property, not personal property (and required both signatures to transfer real estate) and provided gender-specific rights, which violates the equal protection doctrine, but where it remains, dower and curtesy have been modified to equalize rights. Regardless of whether dower and curtesy still persist, the surviving spouse usually has a right to an elective share, which is usually greater than what is provided by dower and curtesy; hence, it is almost always chosen. For instance, UPC § 2-202 provides a minimum of $75,000 for the elective share.

Note that because each spouse is entitled to ½ of the marital property, there is no elective share right in community property states.

Homestead Exemption, Personal Property Exemption, and Family Allowance

The surviving spouse also has a homestead exemption that varies widely among the states. In some cases, the surviving spouse receives a life estate in the homestead, while in most other states, the surviving spouse receives a pecuniary value—the homestead allowance—set by statute. Most states allow the homestead exemption to be claimed in the probate process, but other states require that a declaration of homestead be filed. However, if the surviving spouse does not have a legal homestead, then the probate court could set aside property from the probate estate as a probate homestead. Although in some states, the homestead allowance can be large, it usually is a low value—UPC §2-402, for instance, allows only a $22,500 exemption. However, the homestead claim is superior to the claims of all other creditors. If there is no surviving spouse, then the children receive an equal share of the homestead allowance.

The states also give the surviving spouse a claim on some of the decedent spouse's exempt personal property. Some states provide a list of tangible property to which the surviving spouse is entitled to, but other states set a maximum pecuniary value. For instance, UPC § 2-403 provides a $15,000 maximum value on the exempted personal property to the surviving spouse, but if both spouses are dead, then it is divided equally to the surviving children. However, if there is not enough value in the estate, then the exempt personal property abates before the homestead or family allowance.

Probate generally lasts 1 to 2 years, during which time no property or money is distributed, but probate can be prolonged by will challenges. So that the surviving spouse and minor children can supported during the lengthy probate process, the law provides a family allowance. The amount of the family allowance varies widely among the states, with some states allowing a fixed amount regardless of the value of the estate, while others consider the value of the estate and the surviving spouse's standard of living. UPC § 2-404 allows for a family allowance during the administration of the estate, but it may be limited to 1 year if there is insufficient funds to pay allowed creditors' claims.

If the probate estate has sufficient value to pay creditors' claims, then UPC §2-405 allows the surviving spouse or the guardians of minor children to request money or to select property that is not specifically devised as the family allowance or homestead allowance, but if they don't act within a reasonable time, then the personal representative can make the selection. A maximum lump sum of $27,000 or installments of a maximum of $2,250 per month for 1 year can be paid without court approval, but an interested person who is aggrieved by the distribution can petition the court for a review.

Under the UPC, the homestead exemption, personal property exemption, and the family allowance are adjusted for inflation annually by the Consumer Price Index after 2010.