If you are married, it’s simply a fact of life that one of you is going to die before the other. With the exception of those rare romantic stories of husbands and wives who have been Widow Holding a Picture of Her Deceased Spousemarried for decades passing away within hours of each other, most couples end up being parted by death.

The death of a spouse is very difficult, and there is a lot for the widow or widower to process. As Elder Law and Estate Planning attorneys, we are here to help with the financial and legal situations that can arise for the surviving spouse. If you have been recently widowed, are concerned about a widowed parent, or want to take proactive steps to ensure that the spouse who is left behind is protected, we invite you to read our advice here and then call our office to talk about your unique situation.

What Will the Surviving Spouse Live on?

The first concern of most widows and widowers is about how they will support themselves. If, as a couple, you relied on two Social Security payments and two pensions, will that now be cut in half? What about retirement funds that are in the deceased spouse’s name? Here is a general overview:

  • Social Security. In order to collect the survivor benefit to which you might be entitled, you will have to file a claim. If you and your spouse were both collecting Social Security and were both at full retirement age when you started getting payments, the SSA will look at both payments and automatically allocate the higher benefit to you. You cannot continue to get both payments. However, if the deceased spouse had started collecting benefits before reaching full retirement age, say at age 62, things are more complicated. If this is your situation, it is worth getting advice from a knowledgeable person about the best way to optimize your Social Security payments in this situation.
  • Pension. If your spouse had a pension and opted into the survivor benefit at retirement, you will continue to get a percentage of the pension. If they did not select the survivor benefit, however, you will not get this income. It is a good idea to know before a spouse passes away if this is income you can expect or not.
  • Retirement accounts. In Texas, the spouse must be named as the beneficiary of retirement accounts. Unless you signed off on changing the beneficiary at some point, you can expect to inherit any IRA or 401k funds. This money can be rolled over into a spousal IRA so that you have control of the funds.
  • Life insurance. If you are the named beneficiary of a life insurance policy, you will have to contact the insurer to notify them of the death.
  • Savings. Of course, you will continue to have access to any savings or other bank accounts that were in both of your names.

It can be a struggle to get by financially after the loss of a spouse, but an experienced Elder Law attorney can help you make the most of the assets you do have.

Do You Have to Probate the Will?

Probate can be a slow and somewhat costly process, but it is necessary in some situations in order to authenticate a Will and pass property with titles or deeds to the intended heir. If this was a second or subsequent marriage and there are exes and step-children in the picture, you should absolutely probate the estate. However, if this was your only marriage, all of the assets and property should pass to you automatically, and probate is not necessary. Times when we do recommend probating an estate include the following situations:

  • The deceased spouse had a lot of debt. Through the probate process, some of the debt can be extinguished. Creditors are often willing to settle with a widow for less than what is owed. Your attorney can negotiate this settlement.
  • The surviving spouse is impaired. If the widow or widower has dementia, Parkinson’s, or another debilitating condition, an adult child should reform the Will through probate so that the money is preserved in a special needs trust for the survivor.

It is best to discuss your specific situation with an Estate Planning and Probate Attorney as general legal practitioners do not know all of the ins and outs of probate.

Should You Update Your Estate Plan?

Since everything was in both of your names, including your Will, changes will need to be made to your estate plan. You will likely need to name new Powers of Attorney and select new beneficiaries. However, there is no rush to do this. When you have had time to mourn and take care of the most pressing business, we encourage you to contact an estate planning attorney to update your plan.

This information is likely very overwhelming—especially if you are reading it after already having lost your spouse. The good news is that Ross & Shoalmire, P.L.L.C. is here for you. We have advised many widows and widowers about their best course of action after losing a beloved spouse. We have also helped many couples plan ahead so that the surviving spouse is cared for and protected after the other spouse dies. Contact one of our four offices in northeast Texas to learn more.

Ben King
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Ben King helps clients in TX and AR with estate planning, asset protection, probate, and medicaid planning.