LEGAL: Collecting Unpaid Wages
The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
Occasionally, in my law practice, we encounter an employer who refuses to pay a deceased spouse’s last paycheck to the surviving spouse. Some employers insist on making payment to the “estate of the deceased” rather than the deceased’s surviving spouse.
This is made more important if the estate is small, and the final paycheck of the deceased has great impact on the welfare of the surviving spouse and/or children. It is also true that if that paycheck is a large part of the value of the entire estate, then the estate cannot afford the cost of even a simple probate, and it is encouraged that you utilize some self-help procedures as outlined in this article.
If you, as a surviving spouse, have encountered this problem and cannot get the employer to make out the check to you as surviving spouse, there are steps that you can take. If the employer will not budge but insists on making out the check to the deceased spouse or “to his/her estate” instead of the survivor, a Texas statute offers a solution to this problem. Pursuant to Texas Estates Code article 453.004, you are offered a low cost remedy. That statute dictates presentation of an affidavit prepared by the surviving spouse (or his/her attorney) containing the following:
• The person signing the affidavit is the surviving spouse of the deceased employee; and
• Not anyone has applied to the court and has cause to have an executor or administrator of the deceased employee appointed.
The employer is protected by this affidavit pursuant to statute. If employer delivers to the surviving spouse the final paycheck of the deceased spouse to the surviving spouse, it is released from all liability of payment. This release of liability is the same as if it had been delivered to any court-sanctioned executor or administrator. It is important to note that the employer, when tendering the final paycheck, should also include any unpaid sick pay or vacation pay that the employee may have accrued.
In order to be released from liability, employer is not required to make inquiries regarding the truth of the affidavit, but can rely solely upon the statements made on the face of the affidavit.
The surviving spouse (affiant) is answerable to a person having a prior right and accountable to a personal representative who is appointed.
If you have provided the affidavit to an employer that is still dragging his feet, before you spend money that his/her estate can ill afford, it is recommended that you speak with the state Texas administrative offices that govern Wage & Hours. In this attorney’s experience, they can get the employer to the table very quickly and can carry a “really big stick.”
If all of the above does not work (I seriously doubt that the problem is still unsolved), you are encouraged to contact an attorney of your choice to sort out what your rights may or may not be.
James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see – www.houstontxprobate.com.
