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Will my mom get any of her husband's pension and SS if he dies?

(Illinois) My questions: If my mom's husband (of 15+ years) passes first, would she get a percentage of his pension or social security? Does she have the right to any money that was earned while they were married? Would his estate pay for any percentage for her to live in an assisted living facility?

Background: My mom's husband of 15+ years is ensuring she is without any assets if he dies first. Her name was never added to the house deed, and we think he recently signed the deed over to his daughter. He has 'hid' all his assets through his children (money/stocks/bonds). We understand he'd want his kids to have his estate, but we're worried about our Mom's care if he dies first. He recently told her if he dies first, she has to move in with one of her kids. She is in the early stages of Alzheimer's so we wouldn't let her live alone, however, she would have to move to an assisted living facility. I talked to an attorney yesterday (12/29/15) and he said it was a family problem, not a legal problem and he couldn't help us. He couldn't answer any of my questions.

Other info: I'm her POA over health & finance. He he won't let me see his Will, so I don't know if she's signed it without knowing what it was. He won't let me have access to her checking account. He yells at her if she tries to spend any of her money, which he considers his. A few times, he threatened her that she couldn't return to the house if she left with me to go out for lunch. He has taken advantage of her Alzheimer's to intimidate her and make her afraid to do anything without him. Sadly, we can't convince her to leave him because "he needs her". Due to his arthritis, he can't give himself insulin shots four times a day and he needs assistance getting dressed. Technically, they both should be in an assisted living facility at this point.

Can you point me in the right direction to get some answers? Thank you very much.

Status: Open    Dec 30, 2015 - 07:21 AM

Relationships, Finance

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3 answers

Expert Answers

Jan 05, 2016 - 12:54 PM

Without more detail about the assets and the pension, I cannot provide you with specific answers or advice. However, my general advice would be to seek out another attorney or financial advisor in your state. Perhaps one with more experience in divorce and/or elder law. They may be able to help uncover the pension and assets your mother may need to pay for care.

In regards to Social Security income, when one spouse passes away the surviving spouse will continue to recieve the larger of the two social security checks, but the smaller check is eliminated, regardless of which spouse earned the larger check. You will need to initiate this process by providing social security with a death certificate and request the Survivor benefit. This Survivor benefit is also available to a divorced spouse, provided they were married for at least 10 years, and have not remarried since the divorce. This is not affected even if the ex has remarried. In this situation, both the widow and ex-spouse could collect the same Survivor benefit - it does not affect the other person or the amount recieved by each. Please note the Survivor benefit would only be available after the spouse has passed away. A Spousal benefit (which is less than a Survivor benefit - usually 1/2 or less) is also available to spouses and ex-spouses while the primary spouse is living. Divorced or Widowed, your mother's Social Security income will go down. This fact emphasizes the need to seek professional help now to determine what assets she may be entitled to either in divorce or death.

In regards to the pension, again you may need to contact a lawyer, the employer, or both and explain the situation since it sounds like the husband may not willingly offer up this information. Most pensions have many different distribution options: Single Life, Joint-Life (with typical benefits of the non employee spouse ranging from 50%, 66%, 75%, or 100% - meaning the pension amount would drop to this percentage for the life of the surviving spouse when the retired employee passed away), and some pensions allow for a lump sum distribution (which is often rolled over to an IRA to spread out the taxes - but does not have to be). Many pension plans would require a spouse's signature if the employer knew about a spouse and the employee was electing a single life distribution option. Typically the distribution decision is made at retirement and is not changable later on- This income cannot go to the kids. Most employer 401ks and IRAs require a spouse to sign off if they are not the primary beneficiary also - this could be changed later on, but again would require a spouse's signature if the husband attempted to change the beneficiary to his children, and not your mother. Divorce could have an impact - talk to a lawyer and / or employer to understand how this could potentially impact your mother's ability to pay for care. Also, the employer may have a specific process (paperwork) if & when the husband dies first, to deliver the pension check to your mother if a joint life option was selected. I think if you were to call and explain the situation to the employer they would be able to provide you with some additional facts to help you plan for your mothers care.

If either your mother or the husband is a veteran, you may want to seek out the advice of an elderlaw attorney in your state to discuss a VA benefit known as Aid & Attendence that may help pay for care for your mother (or both of them), either now or if she becomes widowed. There are military, medical, and financial eligibility requirements. Alzheimer's would meet the medical needs test. Seek a financial advisor or elder law attorney that specializes in VA benefits to address the other eligibility requirements.

Finally, investigate Medicaid eligibility in your state. If in fact, the husband passes first and she does not have income or assets to pay for care she may need to seek assistance through Medicaid. In her case, she would likely need to be in a Medicaid community and bed. Most often this is a nursing home that will be staffed to take care of Alzheimer patients. It might be wise to visit various communities now and develop a plan if this is the route you ultimately need to pursue.

Again, not all attorneys or financial advisors have the same experience and knowledge or focus. My recommendation is to seek out a professional that specializes in these area in your state.

Jan 05, 2016 - 12:59 PM

Your mom would get to keep the larger of the 2 Social Security checks if she outlives her husband. The smaller check goes away.

As for his pension, it would depend on what he agreed to when he began his pension. He would have had the option of taking the full pension or a smaller pension but with a survivor benefit for his wife. You’d need to find out whether he took a survivor benefit and if so what percentage your mom would receive.

As for the finances, since you have the POA, you can go to her bank and request balances, records and statements.

I really can’t help you with the other question.

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By vasculardementia.care on Nov 30, 2016 - 10:13 AM | Like (0)  |  Report

Thanks for the answer. I had the same comment.

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Voted Best Answer

Jan 05, 2016 - 12:54 PM

Without more detail about the assets and the pension, I cannot provide you with specific answers or advice. However, my general advice would be to seek out another attorney or financial advisor in your state. Perhaps one with more experience in divorce and/or elder law. They may be able to help uncover the pension and assets your mother may need to pay for care.

In regards to Social Security income, when one spouse passes away the surviving spouse will continue to recieve the larger of the two social security checks, but the smaller check is eliminated, regardless of which spouse earned the larger check. You will need to initiate this process by providing social security with a death certificate and request the Survivor benefit. This Survivor benefit is also available to a divorced spouse, provided they were married for at least 10 years, and have not remarried since the divorce. This is not affected even if the ex has remarried. In this situation, both the widow and ex-spouse could collect the same Survivor benefit - it does not affect the other person or the amount recieved by each. Please note the Survivor benefit would only be available after the spouse has passed away. A Spousal benefit (which is less than a Survivor benefit - usually 1/2 or less) is also available to spouses and ex-spouses while the primary spouse is living. Divorced or Widowed, your mother's Social Security income will go down. This fact emphasizes the need to seek professional help now to determine what assets she may be entitled to either in divorce or death.

In regards to the pension, again you may need to contact a lawyer, the employer, or both and explain the situation since it sounds like the husband may not willingly offer up this information. Most pensions have many different distribution options: Single Life, Joint-Life (with typical benefits of the non employee spouse ranging from 50%, 66%, 75%, or 100% - meaning the pension amount would drop to this percentage for the life of the surviving spouse when the retired employee passed away), and some pensions allow for a lump sum distribution (which is often rolled over to an IRA to spread out the taxes - but does not have to be). Many pension plans would require a spouse's signature if the employer knew about a spouse and the employee was electing a single life distribution option. Typically the distribution decision is made at retirement and is not changable later on- This income cannot go to the kids. Most employer 401ks and IRAs require a spouse to sign off if they are not the primary beneficiary also - this could be changed later on, but again would require a spouse's signature if the husband attempted to change the beneficiary to his children, and not your mother. Divorce could have an impact - talk to a lawyer and / or employer to understand how this could potentially impact your mother's ability to pay for care. Also, the employer may have a specific process (paperwork) if & when the husband dies first, to deliver the pension check to your mother if a joint life option was selected. I think if you were to call and explain the situation to the employer they would be able to provide you with some additional facts to help you plan for your mothers care.

If either your mother or the husband is a veteran, you may want to seek out the advice of an elderlaw attorney in your state to discuss a VA benefit known as Aid & Attendence that may help pay for care for your mother (or both of them), either now or if she becomes widowed. There are military, medical, and financial eligibility requirements. Alzheimer's would meet the medical needs test. Seek a financial advisor or elder law attorney that specializes in VA benefits to address the other eligibility requirements.

Finally, investigate Medicaid eligibility in your state. If in fact, the husband passes first and she does not have income or assets to pay for care she may need to seek assistance through Medicaid. In her case, she would likely need to be in a Medicaid community and bed. Most often this is a nursing home that will be staffed to take care of Alzheimer patients. It might be wise to visit various communities now and develop a plan if this is the route you ultimately need to pursue.

Again, not all attorneys or financial advisors have the same experience and knowledge or focus. My recommendation is to seek out a professional that specializes in these area in your state.

Answers

Sep 18, 2016 - 12:38 PM

Call your County Adult Protective Services and report financial and mental abuse, including isolation & verbal abuse. APS will likely also recommend talking to an attorney regarding her husband's interfering with your legal position as POA, as well the issues recommended by other commenters. He is using threat of abandonment to isolate her; both of which are illegal. Has her husband always mistreated her this way? If this is something new I would wonder if he is developing dementia or similar? You can advise APS of this and they could talk to his doctor and children about his possible need for a higher level of care. You are being understanding and fair about his wanting his estate to go to his children -and you are right to look out for your mother and stand up to this husband's abuse and neglect- with professional support.
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