Estate Planning: Death of a Spouse

By Jim Gianelli


Your spouse has died, and whether or not the death was sudden and unexpected or gradual and expected, you are in shock. Your mind is just not working quite right. The realization of what has happened – and the grief – comes in waves, most of the time when you least expect it.

You still need to take care of the details of the living, those pesky matters that require you to act, when you just feel like stopping the world and taking a time-out from all responsibilities. Here’s a practical guide on what to expect.

Fortunately, you have things in order, things like your revocable living trust, your will, your health care directive, and other estate planning documents. You have a continuing relationship with an estate attorney, so your documents are up-to-date. You wait a few days (even a couple of weeks is OK), then call the attorney and ask: “What do I do now?”

Schedule an appointment. If possible, bring with you the next person (usually a child) in the family line who would take over your health care and financial decision-making if you should become incapacitated or die. It is important to establish a relationship between this person and your estate attorney, and a face-to-face meeting is the best way to do this.

Your next question: “What should I bring to the appointment?” Note that if the attorney you are seeing is your current estate attorney, he or she will already have your living trust and will on file. It’s helpful to bring these additional documents:

  • Certified Death Certificates (the number needed depends on your assets and investments)
  • Your latest income tax return and current statements for all assets and investments, including retirement accounts, insurance policies, bank accounts, real estate, and other investments
  • A list and statements of all your bills and debts

At your appointment, unlike in the movies, there is no formal “reading of the will.” Instead, you will be guided through a checklist of do’s and don’ts – steps that need to be taken to transfer title of assets and investments, pay or not pay creditors (some debts may belong to your spouse and not to you) and tie up loose ends, such as contacting Social Security or other agencies.

There may be important tax decisions to make. For instance, whether to roll over an IRA into a spousal IRA, and whether to divide a revocable trust into two trusts for estate tax planning purposes. You may need to obtain real estate values by getting appraisals, or to determine the investment values as of your spouse’s date of death in order to determine the income tax basis for the surviving spouse (especially important if you intend to sell an investment asset or depreciate rental real estate). If real estate is involved, there may be a need to record an “affidavit death of co-trustee” form and an “exemption from real property tax” form to prevent property tax reassessment.

You are still in a fog but glad that your son or daughter is there to help you gather information and take notes on what you need to do next. This is a good time to review your current estate plan to make sure that everything is up-to-date. Addressing issues ahead of time, as always, makes things much easier when a crisis occurs.

A caveat: Be alert for con games that people try to play on grieving widows and widowers. You are especially prone to these scams if you relied on your spouse to take care of the finances and must now do it yourself for the first time.  If something does not feel right, run it by your accountant, financial advisor or attorney. And tell the person who is trying to sell you something that you will need to do this prior to acting.

Finally, be gentle with yourself.  Your world is now different and it will take time to develop a new “identity” without your life partner. The amount of time varies from person to person, but most inform me that it takes about two years to really begin to regain your balance. And remember, you are never alone – many have been there and felt what you are feeling, and grief support services are offered locally. If you need help, rest assured that it is available.