Law of Wills, 2016A

probate code to evaluate each estate based upon the unique circumstances of the parties involved.
This section also examines the other resources that may be available to the surviving spouse.
3.4.1. Social Security and Retirement Benefits
A surviving spouse is eligible to receive Social Security benefits if the decedent worked long
enough to qualify for benefits. Social Security usually pays a one-time death benefit of $255 to the
surviving spouse. The earliest a surviving spouse can receive benefits based upon age is 60. The
amount of benefits the surviving spouse is able to receive depends on the amount of taxed earnings,
the retirement age, and the number of work quarters. The surviving spouse may also have the right
to receive some of the deceased spouse’s retirement benefits. The federal Employment Retirement
Income Security Act of 1974 (ERISA) and the Retirement Equity Act of 1984 mandates that the
surviving spouse has an interest in the private pension plan if an employee dies before his or her
spouse. 13
3.4.2. Homestead, Personal Property Set-Aside, and Family Allowance
When a person dies, the decedent’s surviving spouse and minor children have an interest in
remaining in the family home. The home usually has sentimental and/or economic value to the
surviving family members. Funeral costs and other debts may put the family home at risk. As a
result, most state legislatures have enacted statutes to enable the surviving spouse to retain the family
home free of the claims of the deceased spouse’s creditors. 14 The provisions of state homestead laws
vary significantly. 15
The surviving spouse may also have the right to receive a certain amount of the decedent’s
tangible personal property. That property typically includes household furniture, clothing, cars etc.
The surviving spouse has to satisfy specific conditions to obtain the right to receive this property. 16
UPC § 2-403 (1990, rev. 2008) limits the personal property set-aside to $15,000. That amount is
subject to the cost of living adjustment formula in § 1-109.
All of the states have statutes that permit the probate court to grant the surviving spouse an
allowance for maintenance and support. The surviving spouse may receive the maintenance
allowance for a specific period of time or until the probate case is closed. The provisions of UPC §
2-04 permits the surviving spouse to receive a reasonable allowance. If the estate does not have
enough resources to pay all of the decedent’s creditors, the surviving spouse can only receive the
allowance for one year. Once the estate is closed, maintenance payments to the surviving spouse will
cease. UPC § 2-405 gives the personal representative the authority to decide the amount of the
family allowance up to a specified limit without a court order; however, that decision is subject to
judicial review.
13
John H. Langbein, Susan J. Stabile, and Bruce A. Wolk, Pension and Employee Benefit Law 280-302 (5 th ed. 2010).
14
See, e.g., 58 Okl. St. Ann. § 311 and § 313 (West 2016); 18 A.M.R.S.A. § 2-401 (West 2016); O. R.S. § 2-422 (West
2016).
15
See Mark E. Osborne, Asset Protection Trust Planning, SW037 ALI-CLE 97 (June 21-26, 2015)(discussing probate
homestead laws in various states).
16
In re Estate of Rhea, 257 S.W.3d 787 (TX 2008)(court set aside decedent’s wedding ring for his surviving spouse).
112