How Should You Adjust Your Estate Plan if Your Spouse Dies?

Nobody wants to think about losing their loved one. But the sad reality is that young and old alike face the death of their spouse or life partner. If the worst occurs, you don’t want to be left reeling without a plan in place to handle your estate and the possessions of your loved one.

It’s best to be prepared and know what changes you will need to make to your estate plan if your spouse passes away. If you already find yourself in this seemingly impossible situation, our sincere condolences go out to you. We have interviewed one of our LegalShield provider lawyers, Ashley Higginbotham, supervising attorney at Deming, Parker, LLC, to get her thoughts on when and how to adjust your estate plan during this painful time in your life.

Should couples (married or long-term) link their estate plans together or keep them separate?

Generally, I recommend that everyone meet their basic estate planning needs with three documents:

1. a Financial Power of Attorney;
2. a Healthcare Power of Attorney/Advance Healthcare Directive, and
3. either a Will or a Trust.

If someone is going to use a Will to designate how they want their estate distributed, they should have their own individual Will. Each spouse should have their own documents as it is not likely that you and your spouse will die at the same time.

Additionally, we are seeing more and more couples who disagree on the distribution of assets. This is due, in part, to the fact that our society has more blended families than ever before. Having your own Will allows you to personalize how you want your assets distributed. Due to the flexibility of a Trust and the fact that they do not have to be filed with a Court, couples can do a ‘family Trust’ if they do agree on distributions. However, if they cannot agree, separate Trusts are likely a better option.

Should couples include contingencies in the first round of planning to make tweaking the plan easier if one member dies?

Yes. Contingencies should always be put in place in case a couple dies at the same time, or within a relatively short period of time of each other.

Which estate planning document should the surviving spouse tackle first?

Give yourself time to grieve and then speak with an attorney about updating your estate planning documents. If contingencies were already in place when the initial documents were drafted, then you might not even need to update your estate planning documents right away. However, even if changes are necessary, amending documents to add contingencies or change heirs is generally an easy and quick process.

Where should the surviving spouse update beneficiaries first?

Designating beneficiaries for life insurance policies, or payable on death (PODs) designations on any other financial account, is a great way to get the funds to your heirs without them waiting on your estate being probated. After your spouse’s death, check with your life insurance carriers and financial institutions to ensure that contingency beneficiaries are named and accurate. You may also need to make updates to your Will or add a codicil.

What are the risks of missing a beneficiary update?

Just like with a Will or Trust, you can name primary and secondary/contingency beneficiaries on your life insurance policies and PODs.

If you have only named your spouse as a beneficiary on an account and your spouse predeceases you, the financial institution will handle the account as if no beneficiary was named. It will go to your estate to be disbursed according to your Will or Trust. You should never name a minor (someone under the age of 18 years old) as a beneficiary on a life insurance policy or a financial account. A minor cannot directly inherit the asset; instead, the Court will need to get involved to designate a conservatorship over the funds and the child.

What should a surviving spouse do who needs to update the senior care portion of their estate plan?

“Unfortunately, as the surviving spouse, you now need to consider who will care for you if you are unable to care for yourself. Speak to your loved ones about your wishes. Consider your options for long-term nursing care if necessary. Speak with an attorney who can assist you in setting up your assets now to possibly qualify for additional medical and Medicaid benefits in the future, should that become necessary.”

Take the next step.

We are grateful to have such experienced provider lawyers like Ashley Higginbotham to share their wisdom on how to prepare for the worst in your estate planning needs. You don’t have to go through this process alone. Let LegalShield help you by providing access to affordable, quality legal assistance through our dedicated provider law firms.

You can set up consultation, get help reviewing paperwork and making phone calls, and get answers to unlimited personal legal questions. Our mobile app allows you to start filling out a short Will Questionnaire to begin the Will creation process with ease.

• See how LegalShield can assist with estate planning matters.
• Find the LegalShield plan that works for you.
• Read about the difference between a Living Trust and a Will.