Steps to Take After the Death of a Spouse

The loss of a spouse is a devastating event that has long-term repercussions, both emotional and financial. A surviving spouse is often required to provide immediate attention to matters related to the estate administration (much of which might be unfamiliar to them) even as they process and adjust to their loss and grief.

Very often, the surviving spouse is appointed as the estate administrator but may not be able to concentrate on the probate process, resulting in missing relevant court filings and tax payment deadlines. If the decedent had named their spouse, a child, or another person as executor, the individual selected to administer the estate may decide to retain an attorney to assist with many of the estate administration functions. If the decedent died without a Will naming an executor, state law generally provides that an individual can petition the court to take on the role of personal representative, or the court will appoint an individual to take charge of the estate settlement.

When an individual dies, the surviving spouse should address at least the following three (3) estate administration items in the first few weeks or month following the death:

1. Legal Documents. Whether the surviving spouse will serve as personal representative, or someone else will serve in that role, the survivor can help to organize and expedite the estate settlement process by gathering and organizing the deeds to all real estate owned in the individual name alone and in joint ownership with a third-party, securing current retirement plan account statements, marriage certificate, life insurance policies, the Last Will and Testament, Trust Agreements, and at least two (2) original death certificates. The executor or personal representative, which may or may not be the surviving spouse, will need to review these items to determine the proper procedure for administering the estate and any trust which was established by the decedent during their lifetime.Depending on how beneficiary designations were completed, retirement plan assets and life insurance death benefits may be subject to probate. However, if the decedent’s beneficiary designations for tax-deferred retirement plans and life insurance have individuals or charities designated as the beneficiary, then these type of assets should not be exposed to the probate process, which assets often distribute either outright, or in trust, to the surviving spouse and any children.
2. Review Benefits Payable to the Surviving Spousal. Life, health, and liability insurance policies should be properly reviewed. The decedent’s employer may have additional details about potential benefits a surviving spouse is entitled to receive. If the surviving spouse had been designated as primary beneficiary of retirement accounts, he or she typically will have the option to implement a spousal rollover.
3. Elections for Portability and Elective Share. If available, the surviving spouse might desire to opt for portability of the deceased spouse’s unused estate tax exemption amount by having an experienced accountant prepare and file a federal estate tax return. Portability allows a surviving spouse to use the unused portion of their deceased spouse’s federal estate tax exemption, which, under current law, could allow a surviving spouse to leave almost $11 million in assets to their beneficiaries free of federal estate tax. However, the estate executor must make the election in a timely manner by filing a federal estate tax return for the deceased spouse within nine (9) months following the first spouse’s death.

If you or your clients would like to learn more information about estate planning and settlement matters, please call The Levin Law Firm at (610) 977-2443 to arrange a consultation with trust and estate planning attorney Philip Levin, Esq.

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