Other Surviving Spousal Resources

The main purpose of this chapter has been to examine the steps the law takes to prevent spousal disinheritance. In this section, I would like to briefly discuss two other approaches states have taken to achieve that goal. The earliest forms of protection from spousal disinheritance adopted in the United States were the common law doctrines of dower and curtesy. Dower gave a surviving widow a lifetime interest in one-third of the property her husband acquired during their marriage. Curtesy afforded a surviving widower slightly more protection because he was entitled to a lifetime interest in all of the property his wife obtained while they were married. The intestacy statutes of the majority of states and the Uniform Probate Code have abolished dower and curtesy. However, a few states still retain the law of dower. In those states, dower applies to protect both men and women. A few state legislatures have adopted the Uniform Probate Code recommendation and modified their elective share statutes to consider the marital contributions of the parties involved. Those legislatures have rejected the “one size fits all” approach in favor of permitting the

112

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).

113

3.4.3 Dower

Ohio Revised Code Ann. 2103.02

A spouse who has not relinquished or been barred from it shall be endowed of an estate for life in one third of the real property of which the consort was seized as an estate of inheritance at any time during the marriage. Such dower interest shall terminate upon the death of the consort except:

(A) To the extent that any such real property was conveyed by the deceased consort during the marriage, the surviving spouse not having relinquished or been barred from dower therein;

(B) To the extent that any such real property during the marriage was encumbered by the deceased consort by mortgage, judgment, lien except tax lien, or otherwise, or aliened by involuntary sale, the surviving spouse not having relinquished or been barred from dower therein. If such real property was encumbered or aliened prior to decease, the dower interest of the surviving spouse therein shall be computed on the basis of the amount of the encumbrance at the time of the death of such consort or at the time of such alienation, but not upon an amount exceeding the sale price of such property.

In lieu of such dower interest which terminates pursuant to this section, a surviving spouse shall be entitled to the distributive share provided by section 2105.06 of the Revised Code.

Dower interest shall terminate upon the granting of an absolute divorce in favor of or against such spouse by a court of competent jurisdiction within or without this state.

Wherever dower is referred to in Chapters 2101 to 2131, inclusive, of the Revised Code, it means the dower to which a spouse is entitled by this section.