United States: The Dear Departed: Making Final Wage Payments For Deceased Employees

Last Updated: March 2 2016
Article by Aurelio J. Pérez

The death of an employee is an unfortunate fact of life for businesses. Nonetheless, employers may be ill-prepared for the inevitable issues that arise from the sad event. Of concern are:

  • Who can claim wages of deceased employees?
  • Is there a limit on wages that can be claimed without probate or a court order?
  • Are special forms necessary?
  • Do final wage payment rules for terminated employees apply to deceased employees?
  • Should taxes be withheld?

Because state law largely controls how the deceased's final wages should be paid, the answers will vary. Therefore, state statutes and experts should be consulted. However, knowing what to look for will help guide employers through the process.

Who Can Claim Wages of Deceased Employees?

While it is clear that wages earned by an employee prior to death must be paid, it may not be obvious whom an employer might (or must) pay. Generally, the payment will either be made to a surviving spouse or the deceased's estate. Traditionally, the payment is made to the deceased's estate. However, many states (especially if there is no will or probate proceedings) specify that outstanding wages – or at least some portion of the wages – can be paid directly to the surviving spouse. If there is no surviving spouse, then the wage payment would be made to adult children, parents, or siblings, usually in that order of preference.1 Even with probate administration proceedings, some states will still allow or require payment to the deceased's spouse if the value of property subject to probate administration is under a certain threshold (e.g., $30,000).2

Is There a Limit on Wages That May be Claimed Without Probate or a Court Order?

Employers should confirm the amount that may be paid to a surviving spouse outside of estate administration. Most states limit the amount that can be paid directly to the surviving spouse. The statutes range in amounts from $100 to $40,000 of wages.3 Consequently, amounts over and above the limits should be paid by means of probate administration.

Are Special Forms Necessary?

Employers need to know if any special forms are needed to effectuate the payment. Most states do not require special forms for wages paid to the surviving spouse. They either permit or require employers to pay the survivors. Generally, a demand or an affidavit should be furnished to the employer4 or probate court5 by the surviving spouse or successor identifying the decedent with a request for payment. The applicable statute will generally provide the necessary wording and monetary limits for the affidavit.

Do Final Wage Payment Rules for Terminated Employees Apply to Deceased Employees?

Employers may be concerned about the timing of payment. The wage and hour laws in many states regulate how quickly employees must be paid final wages after separation. These timeframes often depend on whether the employee voluntarily terminated the employment relationship or was involuntarily terminated by discharge or layoff. Generally, involuntary terminations give rise to a shorter timeframe for paying final wages. However, most state laws are unclear as to the required timing of payments to survivors because the timing may depend on a demand for payment made by the survivor. Nonetheless, a few states do set parameters. The parameters generally are not as pressing as when employees are involuntarily terminated.6 Consequently, it is unlikely that payment to the surviving spouse or other must be made by the next day or payday.

The states that require wage payments to be made through probate administration often follow the Uniform Probate Code and require that 30 days have passed following the date of death before paying the wages to the estate or successor (personal representative, executor, or administrator) for probate administration.

Should Taxes Be Withheld?

Employers should determine whether to withhold employment taxes on the final wages of a deceased employee. Here, federal law is important. As a general rule, when paying the final amount of outstanding wages in the year of death, only FICA and FUTA taxes need to be withheld. Federal income tax does not need to be withheld from the final pay. If the wages are paid in the following year, they are not subject to FICA, FUTA, or federal income tax withholding.7 In either year, the survivor or estate will receive a Form 1099-MISC with "other income" listed in Box 3 for the gross wage amount. States will generally follow the federal withholding rules; however, employers should double check for any special state requirements.8


1 States with this sort of arrangement include: AL, AZ, CA, CO, CT, DE, FL, GA, HI, IL, IN, KS, LA, MA, MI, MN, MS, NH, NJ, NM, NY, ND, OH, OK, OR, PA, RI, TN, VA, WA, WV, and WI.

2 States with this sort of arrangement include: CT, IL, IN, KY, NJ, NV, NY, and VA.

3 AZ - $5,000; CA - $15,000; CT – $40,000; DE - $300; GA - $2,500; HI - $2,000; MA - $100; MN - $10,000; NH - $500; NY - $15,000 or $30,000 depending on estate size; OH - $5,000; OK - $3,000; OR - $10,000; PA - $5,000; RI - $150; TN - $10,000; VA - $25,000; WA - $2,500; WV - $800.

4 Affidavit to employer: CA, CO, HI, IL, IN, LA, MN, NV, ND, NH, NM, NY, RI, UT, and WA.

5 Affidavit to probate court: CT and NJ.

6 Hawaii requires payment within 30 days of death. Indiana provides payment should be made when 45 days have passed since death. In Massachusetts, if no petition for administration has been filed within 30 days of the employee's death, then the employer can make the wage payment up to $100. Nevada provides that payment may be made at 40 days after death. Oklahoma provides that wages shall become "due and payable" to survivor upon the employee's death. Oregon also states wages become "due and payable" upon the employee's death. In Rhode Island, payment may be made 30 days after date of the death. The Wisconsin statute provides that payment to surviving spouse be made at least five days after death, but before probate administration.

7 See IRS Publication 15, (Circular E), Employer's Tax Guide For use in 2016 (Dec. 23, 2015).

8 Littler research attorney Vincent Bates assisted with the preparation of this article.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Aurelio J. Pérez
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.