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Estate Planning for Surviving Spouses

Posted by Nina Whitehurst | Oct 10, 2023 | 0 Comments

After losing a spouse or longtime partner, it's difficult to look past your grief. However, it's crucial to understand the important and timely decisions you must make regarding your finances and personal estate plan.

Estate planning is an ongoing process, as it accounts for changes in marriages, deaths, divorces, and births of children and grandchildren. Assuming your spouse left an updated estate plan before passing can have disastrous consequences if that assumption proves to be incorrect.

Review Both Estate Plans

To avoid problems, first schedule a meeting with your estate planning attorney WHILE YOU ARE BOTH STILL ALIVE. With your attorney, you can take some time to review your estate plan as well as your spouse's.

It is not uncommon to discover assets of which you were unaware, allowing for planning opportunities to transfer tax-free wealth. With the loss of a spouse's income, uncovering assets may also help secure a widow or widower's finances. You may also discover incomplete beneficiary designations, incorrect titling of assets, or an overlooked grandchild who is new to the family.

Rules and Deadlines Regarding Asset Transfers

Your estate planning attorney can also advise you of the decision-making deadlines inherent to your situation. There are some powerful wealth transfer tools available to you as a surviving spouse. For instance, you may opt to transfer interest in some of your late spouse's assets to other beneficiaries. Note, however, that this must occur within nine months of your spouse's date of death.

Tax Laws That Affect Your Inheritance

Inheritance tax laws can be confusing. As a surviving spouse, you have the option to file a federal tax return for that year as a single individual or as a married couple to receive higher deductions as long as you don't remarry that year.

Regarding the decedent's estate tax return, a surviving spouse may need to make a portability election maximizing the amount transferred estate-tax-free to the next generation. If the decedent didn't use a revocable trust to shelter assets from the probate process, there are timelines to meet with the probate court. Many more scenarios exist, and a surviving spouse must prioritize assessing the estate plan and finances while grieving.

After a spouse passes, much of the attention of legal services focuses on managing the decedent's estate, rather than the legal needs of the surviving spouse. There are circumstances when wills and trust configurations permit a surviving spouse a “second look” to see if the decedent's estate plan is still a proper fit. Existing estate plan documents in the surviving spouse's name require review to change beneficiaries or representatives as necessary.

Aside from Wills and Trusts, Review Related Legal Documents

Durable Powers of Attorney (DPOA)

A durable power of attorney lets you name an individual to act on your behalf for financial matters. During your lifetime, this person is typically your spouse. As the surviving spouse, you must identify another trusted person to replace your spouse as the agent under your power of attorney.

Medical Power of Attorney (Health Care Proxies)

You'll also have to select an individual as your new health care agent if your spouse had been your representative. If you become ill and cannot communicate your health care decisions, your medical agent can make medical decisions on your behalf. If you have an alternate designation on the health care proxy, review the choice to ensure that person is still appropriate. Or, you may remove that person and name a new health care agent.

These documents are often on file with your primary care physician. Be sure to provide updated copies to all health care providers who have the old document and make them aware of any changes.

HIPAA Release Forms

Even if you have a medical power of attorney, you may still want to ensure that other family members can discuss your health situation with medical professionals. If so, you must sign a HIPAA release form to allow them to access your medical records. Be sure your primary care provider has a copy of this form.

Consult With Your Estate Planner

Reviewing and making appropriate changes to your estate plan with guidance from your attorney will protect you as a widow or widower. It's a challenge to review this during an emotional time, but you need to prepare yourself for the future. 

About the Author

Nina Whitehurst

Attorney at Law Nina has been practicing law for over 30 years in the areas of estate planning, real estate and business law She is currently licensed in Alaska, Arizona, California, Colorado, Oregon and Tennessee. Her Martindale-Hubbell attorney rating is the highest achievable: 5 stars in peer...


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