Plan an Estate for Your Surviving Spouse

Following the loss of a spouse or longtime partner, it is difficult to look past your grief. However, it is crucial to understand there are important and timely decisions you need to make regarding your finances and personal estate plan. In truth, estate planning is perpetual as it accounts for changes in marriages, deaths, divorces, and births of children and grandchildren. Assuming your spouse left an up-to-date estate plan requiring no further action after their passing can have disastrous consequences.

Taking timely action is essential for securing your surviving spouse’s future. Estate planning is a continuous process that requires regular updates, especially after major life changes like the death of a spouse. Whether you need an estate plan or adjustments to an existing one, The Law Office of Whitney L. Thompson, PLLC can provide the support you need. Our skilled Houston estate planning attorneys can guide you through the process, ensuring your spouse’s financial security and addressing any potential tax implications or asset distribution concerns. Contact us today at (281) 214-0173 to discuss how we can help you plan for your spouse’s future and safeguard your family’s legacy.

When a Husband Dies, What Is the Wife Entitled To?

When a husband passes away in Texas, a wife’s entitlement to his assets depends on whether he had a will and how the property is classified. Texas law divides property into community property and separate property, and this distinction plays a crucial role in determining the wife’s share.

• Community Property: Assets that are acquired during the marriage, except through gift or inheritance, are considered community property. If the husband passes away without a will, known as dying “intestate,” the wife retains her share of the community property, which is typically half. The husband’s half may go to his children, whether from the marriage or previous relationships. If there are no children, the wife typically inherits all the community property.
• Separate Property: Assets owned by the husband before the marriage or acquired by gift or inheritance are classified as separate property. If the husband had children from another relationship, the wife inherits one-third of his personal property and has a life estate (right to use) in one-third of his real property. The remaining two-thirds go to his children. If he had no children, the wife inherits all his personal property and half of his real property, with the other half going to his parents or siblings.

Texas law ensures housing stability for the surviving spouse by granting the right to occupy the marital homestead for life, regardless of who inherits the property, as long as the surviving spouse does not abandon this right. Additionally, the surviving spouse may be entitled to a one-year family allowance payable from the estate and can claim certain exempt personal property, such as household furnishings and vehicles, which are protected from creditors. Unlike some other states, Texas does not have an elective share provision; instead, its community property system safeguards the surviving spouse’s rights.

The existence of a valid will overrides these default distributions and dictates how assets are divided. Proper beneficiary designations on financial accounts or insurance policies can also transfer assets directly to the wife without requiring probate. It is critical for the surviving spouse to take timely action, including filing necessary probate documents, to claim entitlements and protect their interests. 

Reviewing Your Estate Plan

Your first line of defense to avert problems is scheduling a meeting with your Houston estate planning attorney to review the decedent and your estate in its entirety. It is not uncommon to discover assets you are unaware of, which allows for planning opportunities to transfer tax-free wealth. With the loss of a spouse’s income, uncovering these sorts of 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 newly born into the family.

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 disclaim interest in some of the decedent’s assets in favor of transferring them to other beneficiaries, but this must occur within nine months of the decedent’s date of death.

Inheritance and Estate Tax Implications for Surviving Spouses

Inheritance tax laws are in political play. Is there an elimination of the tax-free basis step-up but still a $1 million per person exclusion, and how long will you have to make this adjustment? 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, permitting you to receive the benefit of higher deductions as long as you do not 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 had no revocable trust sheltering assets from the probate process, there are timelines to meet with the probate court. Many more scenarios exist but what is universally true is that a surviving spouse must prioritize assessing the estate plan and finances amidst their grieving.

Addressing the Surviving Spouse’s Needs

After a spouse’s passing, much of the attention of legal services focuses on administering the decedent’s estate, yet so often, allotting time to develop plans to meet the legal needs of the surviving spouse is often overlooked. Both the decedents and surviving spouses will require review. 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 for the spouse. Existing estate plan documents in the surviving spouse’s name require review as documents most often require a change of beneficiary or representative since the death of their spouse.

Key Estate Planning Documents

These documents ensure that important decisions regarding finances, health care, and legal matters are made by trusted individuals, and can help avoid complications or disputes. It’s essential for the surviving spouse to revisit and update these documents as soon as possible to ensure that the estate plan reflects their current wishes and circumstances. Failure to update key documents may lead to confusion or delays in decision-making, which can create unnecessary challenges during an already difficult time.

Aside from wills and trusts, some of the most basic estate planning needs for implementation or review moving forward with the surviving spouse’s documents include:

Durable Powers of Attorney

This individual acts on your behalf for financial matters and is typically between spouses during your lifetime. The surviving spouse must identify another trusted person, replacing the decedent, as their power of attorney and decide if this power is only available in the event of incapacitation or at any time.

Medical Power of Attorney (Health Care Proxies)

Again, if the decedent was your representative, you would have to select an agent in the event of incapacitation or an inability to communicate your healthcare decisions. There is a possibility of an alternate designation in the health care proxy. If so, review the choice to ensure it 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 personnel. Strict laws govern the release of your medical information. If you want additional individuals to access your medical records, you must sign a HIPAA release form. This strategy of an additional individual having access to your medical information is useful, particularly when you are still making your own decisions but prefer someone to discuss your medical situation with the doctors. Be sure your primary care provider has a legal copy of this form.

Document	Details
Durable Power of Attorney	Allows a trusted person to handle financial matters on your behalf. The surviving spouse must appoint a new agent.
Medical Power of Attorney	Authorizes a designated agent to make healthcare decisions if you are incapacitated. Update if the decedent was your agent.
HIPAA Release Form	Grants specific individuals access to your medical records, even with a medical power of attorney in place.

Secure Your Future Today with Professional Guidance

It is not uncommon for an estate planning attorney to understand the financial and legal situation more fully than a surviving spouse. Whatever your level of comprehension of the situation, it is paramount to review and make appropriate changes to best protect yourself as a widow or widower. It is a challenge to review all of this during such an emotional time, but do not delay in creating your best scenario moving forward. Please contact The Law Office of Whitney L. Thompson, PLLC at our Houston office at (281) 214-0173 or the Bay City office at (979) 318-5079 today and schedule an appointment to discuss how we can help you with your legal matters.

from The Law Office of Whitney L. Thompson, PLLC https://www.wthompsonlaw.com/plan-an-estate-for-your-surviving-spouse/