After the death of a spouse, what's next?

Typically, the surviving spouse is named as the personal representative, also known as an executor, of the will and is responsible for administering the estate. In many states, the personal representative may have to retain an estate planning attorney. Administering an estate can be complicated.

In preparation for your first meeting, you should collect all relevant financial and legal documents, such as the death certificate, bank statements, brokerage statements, tax returns, real estate records and property deeds. Your attorney will give you a list of exactly what you need to bring. They will guide you through the entire probate process, informing you of the procedures and helping you file the proper forms with the court. If your spouse had a trust, your attorney will help you comply with the provisions in your role as the trustee. If you are not the trustee but only a beneficiary, your attorney can help ensure that your rights are recognized.

What complications can arise for a surviving spouse during estate administration?

With the help of a professional, estate administration typically goes smoothly. However, sometimes complications can arise, especially if it is a second marriage and the deceased had children from a prior relationship. A few examples of challenges that can occur during the estate administration of a spouse are listed below.

The surviving spouse is not mentioned in the decedent's will.

Sometimes spouses are left out of the will, either inadvertently or purposely. If a spouse was mistakenly left out of the will, the law refers to them as a pretermitted spouse. Usually, this occurs when the decedent created a will before getting married and failed to update it. The laws of every state are different, but generally, the pretermitted spouse will still be entitled to an inheritance, usually the same share as if the deceased had died intestate (without a will).

Even if the surviving spouse was purposely disinherited, they might still be entitled to an inheritance. Almost every state has an elective share statute allowing the surviving spouse to take a share of the estate. However, if the spouse waived their inheritance rights in a prenuptial or postnuptial agreement, they will not be entitled to anything. If you were left out of your spouse's will, it is critical to speak with an estate planning attorney as soon as possible to ensure that your rights are protected.

The deceased's children from outside the marriage are challenging the will.

Sometimes children from a previous marriage feel strongly that a surviving spouse has “stolen” their inheritance and will try to challenge the will. For example, they could allege that the will's provisions are unclear, the will was fraudulently executed, or a later valid will exists.

If you suspect that the deceased's children are resentful, it is critical to work with an attorney from the very beginning. Acting slightly out of accordance with the law makes you vulnerable to an attack. A small mistake can have devastating consequences down the road.

You need money immediately and cannot wait.

In addition to everyday living expenses, a surviving spouse is often responsible for funeral costs. This can cause severe financial stress for some individuals while they wait months for the estate to close. This situation most often occurs when the spouses kept their finances separate and had no joint accounts.

If you are in this situation, you may be able to petition the court for a family allowance to be paid out of the decedent's estate until the estate administrator distributes the estate's property. Other interested parties, such as your spouse's adult children, can contest your petition. The court will deny the petition if you have a secure source of income or are receiving financial support from someone else.

There was a divorce pending.

In general, if the divorce was not final (the court did not issue the divorce decree), the family court will dismiss the divorce proceeding, and the surviving spouse will be treated like any other widow under the law. However, your strained relationship could cause other beneficiaries to try and challenge your right to an inheritance.

It is critical not to ignore your own estate planning needs after the death of your spouse. Suddenly, many of your estate planning documents may be out of date. Important work must be done not only to prepare for what will happen after your death but to protect yourself during your lifetime.

Estate planning documents that commonly must be updated after the death of a spouse include:

Wills

You should remove your deceased spouse as a beneficiary in your last will and trust. If they are named as your executor, you will need to remove them and designate someone new. Additionally, if you have inherited assets from your spouse, you will need to confirm that this property is now included in your will.

Trusts

If your deceased spouse is appointed as the trustee, you will need to remove them and appoint someone new. You will also need to remove your spouse as a beneficiary and potentially add new beneficiaries. Additional assets that you have inherited may need to be included.

Importantly, you and your attorney should review your trust to ensure that it is still serving the proper purpose. For example, a surviving spouse can take advantage of the unlimited marital deduction. Unless you remarry, your heirs will not be able to take advantage of this deduction, and you will need to consider the most efficient way to transfer your wealth to the next generation. Prior to your spouse's passing, this may not have been the main focus of your trust.

Durable powers of attorney

A durable power of attorney gives another individual the legal authority to make financial decisions on your behalf if you become incapacitated, including paying bills, dealing with insurance companies and paying taxes. Most likely, you named your spouse as your agent. After their death, you should execute a new power of attorney naming a different agent, such as an adult child or other close friend or relative. If you have multiple children and do not want to put all the pressure on one child, you can consider creating a joint power of attorney. It is critical to consult with an estate planning attorney because naming an individual who does not have your best interests at heart opens up the potential for abuse.

If you become incapacitated and have failed to update your power of attorney, your loved ones may be forced to petition the court for a guardianship or conservatorship. This court process can be lengthy and expensive and lead to fighting within the family.

Health care power of attorney

Your health care power of attorney gives another person the legal authority to make health care decisions on your behalf if you cannot make these decisions for yourself. Most individuals name their spouse as their agent. After their death, it is critical to execute a new health care power of attorney naming a new agent that you trust to carry out your wishes.

Beneficiary designations

You should update the beneficiary designations on all retirement, brokerage and bank accounts that list your deceased spouse as the beneficiary. The last thing that you want is for your loved ones to have to deal with confusion and red tape when you pass away.

Life insurance policies

You should determine whether you still need to keep your life insurance policy after the death of your spouse. If you want to keep the policy, you should update the beneficiaries and review the amount.

In addition to updating your estate planning documents, you should speak with an estate planning attorney about the portability election. Portability allows a surviving spouse to apply their deceased spouse's unused federal gift and estate tax exemption amount to their own transfers during life or death. This option is especially helpful to a surviving spouse that has inherited property or a business whose value has the potential to increase significantly over their lifetime. You must make the portability election on a timely filed estate tax return. The return is due nine months after the death, with a six-month extension option. Because of this deadline, you should not wait to speak with an estate planning professional.

Everyone's estate planning needs are different. An experienced Legacy Plan Network Attorney can review and update your plan to ensure that it fits your needs. Although updating your estate plan may not seem like a top priority, putting it off can have dire consequences.

After the death of a spouse, it is critical to take time to review your finances and assess how your income and expenses will change. This step is particularly important if your deceased spouse handled all the finances in the relationship. You should consider hiring a professional to ensure that your financial future is protected.

Your retirement income could be affected. For example, if you both received Social Security, one check will end. Pension payments could also stop if the plan did not have survivor benefits. Additionally, if your deceased spouse was working, you will no longer have this paycheck to rely on.

Many people assume that their household expenses will significantly decrease after the death of their spouse, but this is not often the case. Expenses may even increase if you need to hire someone to do something that your spouse previously handled. For example, if your spouse was a stay-at-home mom, you will need to pay for child care, which can be a significant expense.

The death of a spouse is one of the most traumatic, life-changing events a person can experience. It is critical to take care of your emotional needs during this time. You should avoid making any big financial decisions within a year of the death of your spouse, such as selling your home or making a lump sum investment. Individuals often come to regret major decisions made during an emotional time, especially if you were pressured into the decision by a third party. It is critical to be aware of your vulnerability during this period of grief.

If you are having trouble working through your grief, it is important to reach out to loved ones for support. Many people find it helpful to join a support group or meet with a professional, such as a psychiatrist, psychologist or therapist. You do not need to go through this time alone.