What to do when a Spouse Dies

What do I do when my spouse dies? We get that question a lot, and we often suggest the surviving spouse take time to attend to the funeral and family, grieve, and regroup before we discuss legal matters. But when we do discuss, I offer a similar road map to all.

Identity theft is rampant. A common source of identity theft is obituaries. Crooks are happy to steal the identity of a dead person as the dead person is not around to notice and take action about theft.

That makes it important to notify all persons and entities that would be the most likely targets of identity theft action. Notify all companies issuing credit cards in the name of or for use by the deceased spouse. The companies will take action to end access by the decedent.

Care is needed here. In many cases, all of a married couple’s credit cards were originally issued to the deceased spouse and the surviving spouse only had signing authority. The credit accounts seemed like joint accounts, but they weren’t. When the surviving spouse notifies the credit card companies that his or her spouse died, the cards could be cancelled and the surviving spouse left with no usable credit cards.

It is too late to fix this problem easily after the first spouse dies. That means all married couples should be sure that each spouse has at least one credit card in his or her name and not merely right to use cards issued to the other spouse.

Bank accounts can be another target. The surviving spouse should notify all financial institutions of his or her spouse’s death. Notice should go to banks, stockbrokers, credit unions, and others, whether brick-and-mortar offices or online services. The financial institutions will freeze the accounts, and they will not be accessible by power of attorney or otherwise, unless the surviving spouse was also an owner and not merely a signer.

This is another area where a married couple should make sure that each will have access to funds if the other dies. Many think they can simply access an account using power of attorney granted by the other spouse, but all powers of attorney end when the person granting authority dies. Others believe that because they have signing authority, the account is jointly owned. Signing authority usually ends when the other spouse dies.

As with credit cards, a married couple should make sure that necessary accounts are held in a manner that will allow the surviving spouse to access needed funds. Access to financial accounts in the name of a deceased spouse may otherwise require probate. Probate requires filing with the court and arranging for issuance of authorization by the court before anyone can access funds in a decedent’s account. Stress and delay associated with that process should be avoided.

Notice should also be provided to all pertinent insurance companies. That is not only life insurance companies with policies on the decedent but also other insurances such as cars and houses. Sadly, insurance premiums can increase because many insurers have a widow or widower “penalty.” The penalty is based on higher rates for both homeowner and auto insurance for single people rather than a married couple. Failure to report death of a spouse may allow the insurance carrier to later refuse a claim on the basis that failure to report the death of a spouse prejudiced the insurance carrier.

One thing we recommend not be done by a surviving spouse is paying the deceased spouse’s bills. Unless the surviving spouse signed up for payment obligation, the surviving spouse does not owe debts of the decedent. That includes the decedent’s separate credit card and medical bills.

Joint bills are different. Joint bills can include credit cards under which both are obligated. Certain other bills should be paid because continuation of service, such as utilities and cable, is important. There should not be a rush to make sure all bills get paid until the surviving spouse has time to decide what bills must be paid and what bills the surviving spouse wants to pay even though there is no legal obligation to do so.

Is probate required? Assets that are not owned in a survivorship mode or payable on death may require probate. Unless the surviving spouse has a pressing need for funds that can only be obtained through probate, there is no need for a rush to court. The only “rush” Florida requirement is that whoever has an original will is required by statute to deposit the will with the clerk of courts within 10 days of a decedent’s death.

Another reason to delay probate is creditors of the decedent are barred from pursuing claims in probate unless a claim is filed within two years of death. In some cases, we recommend putting off start of probate until after those two years have passed and claims for medical bills, credit cards, and the like are barred.

The surviving spouse should consider updating or preparing an estate plan. Spouses often name each other as death beneficiary of retirement accounts and own everything else jointly with right of survivorship. When the first spouse dies, the plan of leaving all to the surviving spouse is complete and a new plan is needed.

Will and trust provisions should be reviewed. The surviving spouse also needs to consider who should make medical decisions if the surviving spouse becomes incapacitated, who should hold power of attorney, and who should administer the surviving spouse’s estate when he or she dies. These matters are best discussed with an experienced attorney.

Sense of loss associated with death of a spouse often makes the survivor feel like he or she is floating alone on an iceberg in the ocean. Following the steps in this article will help alleviate that feeling and restore order to what can feel like a suddenly upside-down world.