Spouses rights after death

Written by lynne murray
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After the death of a spouse, the surviving spouse's rights depend on what benefits and property the deceased had amassed, what legal provisions for property were arranged during life and, in some cases, how long the couple was married.

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A spouse's rights to property after the death of a husband or wife varies according to what kind of property is involved, state and federal law and legal documents signed during life.

Legal Documents

A will or a revocable living trust may affect a spouse's right to property by passing it to someone other than the surviving spouse.


Six states called Dower (widows rights) and Curtesy (widower's rights) give special property rights to the surviving spouse even in cases where a will or trust states otherwise. Hawaii, Kentucky, Massachusetts, Michigan, Ohio and Vermont grant surviving spouses the right to use one-third or more of a husband or wife's property after his or her death for as long as the widow or widower lives. This right includes real property, and it stands even if the property has been sold, so long as the surviving spouse did not sign the deed or an agreement claiming no interest in the property. Community property state laws vary from state to state but generally divide property that was acquired in marriage equally.


The Employee Retirement Income Security Act (ERISA), a federal pension law, gives widows or widowers the right to collect a spouse's pension after death if the employee earned a benefit. Under the Retirement Equity Act in 1984, a spouse's survivor pension can only be given up with his or her written permission.


When a deceased spouse worked for a state or local government, that state's law will dictate the surviving spouse's right to any pension after death. Special federal rules affect the surviving spouse's rights to a pension after the death of a husband or wife who worked for the federal government or for a church.

Social Security

Social Security ensures the rights of surviving spouses who were married at least 10 years to collect after the death of a husband or wife if the deceased spouse worked long enough under Social Security to qualify. Survivor benefits can begin when the surviving spouse reaches age 60, or age 50 if the surviving spouse is disabled.

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