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Estate Planning for Surviving Spouses

The importance of estate planning for surviving spouse

After losing a spouse or long-time 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 planning for surviving spouse. 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 after their passing can have disastrous consequences. 

Estate Planning for Surviving Spouse: Things to Consider

Review Both Estate Plans

Your first line of defense to avoid problems is scheduling a meeting with your estate planning attorney to review your estate plan as well as your spouse’s. It is not uncommon to discover assets you are unaware of, allowing for planning opportunities to transfer tax-free wealth. With the loss of a spouse’s income, uncovering assets may also secure a widow or widower’s finances. You may also discover incomplete beneficiary designations, incorrect titling of assets, or an overlooked grandchild if they are 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 a surviving spouse. For instance, a spouse may opt to transfer interest in some of the decedent’s assets to other beneficiaries, but this must occur within nine months of the 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’s passing, much of the attention of legal services focus on administering the decedent’s estate, yet allotting time to meet the legal needs of the surviving spouse is overlooked. 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 As Part of Estate Planning for Surviving Spouse

Durable Powers of Attorney (DPOA)

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

Medical Power of Attorney (Health Care Proxies)

Again, if your spouse was your representative, you’ll have to select an agent in the event of incapacitation or an inability to communicate your health care decisions. If you have an alternate designation on the health care proxy, review the choice to ensure that person is still appropriate, or remove them and name a new health care agent. These documents are often on file with your primary care physician, so provide an updated copy to those who may have the old document and be certain they are aware of the change.

HIPAA Release Forms

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

An estate planning attorney may understand your financial and legal situation more fully. Whatever your level of comprehension, reviewing and making appropriate changes in terms of estate planning for surviving spouse will help 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. Call Andre O. McDonald, a knowledgeable Howard County, Montgomery County and District of Columbia estate planning, special-needs planning and Medicaid planning attorney, at (443) 741-1088; (301) 941-7809 or (202) 640-2133 to schedule a consultation.



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For help with estate planning, special needs planning or elder law throughout Howard, Montgomery, Prince George’s, Anne Arundel, and Baltimore County; and Baltimore City, contact McDonald Law Firm, LLC.

McDonald Law Firm, LLC

Columbia Office

10500 Little Patuxent Pkwy, #420
Columbia, MD 21044-3563

Bethesda Office:

(By Appointment Only)

7315 Wisconsin Avenue, Suite 800 West
Bethesda, MD 20814

Washington, DC Office:

2101 L Street, N.W., Suite 300
Washington, DC 20037

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