We recently had a client who asked as what to do in the instance where unmarried employee passed away. Our employer client asked whether or not they can just send his unpaid wages and vacation wages to his son?
If your employee was married, or had a registered domestic partner at the time of his passing, you could utilize the forms on HRCalifornia (Deceased Employee Compensation Collection Form and Employer Proof of Identity and Disbursement of Final Pay—Deceased Employee) and disburse the monies to the surviving spouse or registered domestic partner.
However, when you have a deceased employee who is not married and who has no registered domestic partner, you cannot disburse the monies until you are contacted by either the executor of the employee’s estate, or by the potential beneficiaries of the estate.
If the deceased employee had a will and/or trust, you will be contacted by the executor of the deceased employee’s estate. You are lawfully entitled to disburse the monies as directed by the executor of the estate.
If the deceased employee died without a will or trust, you can disburse the funds only if you receive an affidavit (no sooner than 40 days after the death of the employee) signed by all the potential beneficiaries of the estate pursuant to Probate Code Sections 13100, et seq., attesting to the fact that they are the only possible beneficiaries of the estate and directing you to whom to make the payment of monies. Receipt of such an affidavit acts as a bar to any claims by other individuals.
In a situation where you are not contacted as described above, the employer should contact the Office of the Labor Commissioner of the State of California, and make payment to that office for future disbursement should a lawful heir make a claim on the monies at a later point in time.
Bottom line, when faced with an “unusual” situation regarding the operation of your business, best to seek advice before acting. A common theme we consistently put forth to our readers: “An ounce of prevention is worth a pound of cure.”
