B-151889, JUL. 15, 1963

B-151889, JUL. 15, 1963

TO MRS. VICTORIA MARSHALL:

BY YOUR LETTER DATED MAY 28, 1963, YOU REQUEST REVIEW OF OUR SETTLEMENT DATED MAY 22, 1963, WHICH DISALLOWED YOUR CLAIM FOR SOCIAL SECURITY BENEFITS, AMOUNTING TO $44.50, DUE THE ESTATE OF MARY TOTURA, DECEASED. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THE ASSETS OF A DECEDENT'S ESTATE MUST BE DISTRIBUTED IN ACCORDANCE WITH THE LAWS OF THE DOMICILE OF THE DECEDENT AND UNDER THE LAWS OF PENNSYLVANIA, THE DOMICILE OF THE DECEDENT, THE SURVIVING SPOUSE IS ENTITLED TO AN ALLOWANCE NOT SUBJECT TO DEBTS OR CLAIMS FROM OTHER HEIRS.

THE RECORD SHOWS THAT YOU HAD TAKEN CARE OF YOUR MOTHER, THE DECEDENT, IN YOUR HOME FOR APPROXIMATELY TWO MONTHS PRIOR TO HER DEATH FOR THE STATED REASON THAT HER HUSBAND AND STEPDAUGHTER REFUSED TO FURNISH THE NECESSARY CARE. ALSO, THE RECORD SHOWS THE THE FUNERAL EXPENSES WERE PAID BY YOU. IN VIEW OF THESE FACTS YOU REQUEST THAT WE RECONSIDER YOUR CLAIM.

UNDER THE LAWS OF PENNSYLVANIA, 20 P.S.SEC. 320.211, THE SPOUSE OF ANY DECEDENT DYING DOMICILED IN THE COMMONWEALTH IS ENTITLED, IN THE ABSENCE OF A FORFEITURE OF HIS RIGHTS, TO A FAMILY EXEMPTION OF $1,000 FROM DEBTS OR CLAIMS AGAINST THE ESTATE. THIS FAMILY EXEMPTION TAKES PRECEDENCE OVER THE PAYMENT OF A CLAIM SUCH AS YOURS PURSUANT TO THE PROVISIONS OF 20 P.S.SEC. 320.622 WHICH PROVIDES IN PERTINENT PART, AS FOLLOWS:

"IF THE APPLICABLE ASSETS OF THE ESTATE ARE INSUFFICIENT TO PAY ALL PROPER CHARGES AND CLAIMS IN FULL, THE PERSONAL REPRESENTATIVE, SUBJECT TO ANY PREFERENCE GIVEN BY LAW TO CLAIMS DUE THE UNITED STATES, SHALL PAY THEM IN THE FOLLOWING ORDER, WITHOUT PRIORITY AS BETWEEN CLAIMS OF THE SAME CLASS:

"/1) THE COSTS OF ADMINISTRATION;

"/2) THE FAMILY EXEMPTION;

"/3) THE COSTS OF THE DECEDENT'S FUNERAL AND BURIAL, AND THE COSTS OF MEDICINES FURNISHED TO HIM WITHIN SIX MONTHS OF HIS DEATH, OF MEDICAL OR NURSING SERVICES PERFORMED FOR HIM WITHIN THAT TIME, OF HOSPITAL SERVICES INCLUDING MAINTENANCE PROVIDED HIM WITHIN THAT TIME, AND OF SERVICES PERFORMED FOR HM BY ANY OF HIS EMPLOYEE'S WITHIN THAT TIME; * * *.'

THE QUESTION OF WHETHER THE HUSBAND'S REFUSAL TO CARE FOR THE DECEDENT WOULD EFFECT A FORFEITURE OF HIS RIGHT TO THE FAMILY EXEMPTION IS A MATTER FOR DETERMINATION BY THE COURTS OF PENNSYLVANIA AND WE THEREFORE MAY NOT CONSIDER SUCH FACTOR IN REVIEWING YOUR CLAIM. ALSO, WHILE THE COURTS OF PENNSYLVANIA HAVE HELD THAT THE RIGHT TO THE FAMILY EXEMPTION MAY BE WAIVED, NO SUCH WAIVER HAS BEEN FURNISHED OUR OFFICE. ACCORDINGLY, AND IN VIEW OF THE CITED PROVISIONS OF LAW, THERE IS NO BASIS ON THE PRESENT RECORD FOR ALLOWANCE OF YOUR CLAIM.