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The benefits of marriage add up

By GREGORY GAY
Published April 25, 2006

Florida and federal law draw strong distinctions between the survivorship benefits for a marriage partner vs. those of a person who was a partner of, but not married to, the deceased.

Essentially, a surviving spouse is automatically granted many benefits of the married couple's assets. For instance, a spouse is entitled to the higher Social Security benefit that was received by the now-deceased marriage partner. By contrast, if an unmarried partner receiving the higher Social Security monthly retirement benefit dies first, the surviving partner will receive just his or her own, lower, benefit.

A spouse who is the designated beneficiary of a deceased marriage partner's individual retirement account may roll over this IRA into the survivor's IRA without paying any income tax at the time of the transaction. The surviving spouse may then defer any income tax on these funds until age 70½.

However, a surviving unmarried partner is not permitted the right to roll over these benefits into his or her IRA. The unmarried beneficiary must begin paying income tax on at least the required minimum annual distribution. This often results in a higher income tax bracket being imposed on a surviving partner.

Similarly, the spouse of a person in a nursing home is entitled to transfer to himself or herself countable assets of that partner up to $99,540 and to still receive financial assistance from the state of Florida for the ill spouse's nursing home expense.

In addition, the minimum monthly maintenance needs allowance that the healthy spouse can divert from the nursing home patient's income is $1,604 less the healthy spouse's income. But an unmarried partner of a person in a nursing home does not have these rights.

A surviving spouse is entitled to at least a life estate in the deceased marriage partner's homestead. This homestead right prohibits the decedent's creditors from forcing a sale of the residence. However, an unmarried partner will not have a similar right to avoid the sale of the residence if his or her partner leaves the home to the survivor but owes money to creditors.

The Florida statutes state that in the event a person marries and does not subsequently sign a new will, the surviving spouse will receive 50 percent of the deceased's probate estate if the deceased also has children. Otherwise, the surviving spouse will receive all of the probate estate if there is no will.

Florida law also states that the surviving spouse of a person who dies while a permanent resident now has the right to elect to receive 30 percent of the value of the decedent's assets even if a will signed after the marriage leaves the survivor nothing.

By contrast, the surviving partner of an unmarried couple is not entitled to receive any percentage of the deceased partner's assets.

A surviving spouse also is entitled to elect to receive the deceased partner's household furniture, furnishings and appliances in the deceased spouse's usual residence, up to a value of $10,000. That survivor is further entitled to the automobiles held in the decedent's name and regularly used by the deceased or members of his immediate family as their personal automobile.

By contrast, the surviving partner of an unmarried couple is not entitled by law to receive any of these assets or allowances.

The Florida statutes state that without a health care power of attorney stating a contrary intention, a spouse and then a child has preference in being appointed the guardian or the health care decisionmaker for an ill spouse.

Again, the healthy partner of an unmarried couple has automatic right to make health care decisions for the ill partner. But, a health care advanced directive and pre-need guardian designation expressing a desire for the partner to make these decisions can be signed.

Gregory G. Gay is a lawyer who specializes in elder law in Pasco, Hernando and Citrus counties. Write him in care of Seniority, St. Petersburg Times, P.O. Box 1121, St. Petersburg, FL 33731.

[Last modified April 25, 2006, 07:59:39]