The Surviving Spouse: Basic Legal Issues When Someone Loses a Partner

Written by Andrew Grant

Andrew Grant
Andrew Grant
Tax Certified Attorney
Many things happen all at once when the first of a married couple dies, and the survivor is left to deal with matters that may be unfamiliar and intimidating. Among the most intimidating issues the surviving spouse faces are the legal issues; how to transfer the house, what to do about taxes, or whether a probate proceeding is needed. This article will attempt to offer some basic guidance on these matters.

After making the necessary arrangements for saying goodbye to the deceased, the next step is to put the surviving spouse into position to carry on with his or her life. This usually involves moving assets to the surviving spouse’s sole name. Many assets, like jointly-held accounts or those that are payable-on-death (retirement accounts, insurance, or bank accounts), can transfer with a copy of the death certificate. The DMV will also usually transfer title to a vehicle that way. Transferring title to real property, however, can be a little trickier.

Legally, ownership of real property owned by a married couple automatically vests with the surviving spouse. But if the survivor wishes to sell the property, then for title purposes a few more documents will need to be filed with the county where the property is located, including an affidavit of continuous marriage, an affidavit of no Florida estate tax due and the death certificate.

Property held solely in the deceased’s name, however, generally needs to pass through the probate process to transfer title.

Though many view probate as something to be avoided, it can provide some benefits, especially if the deceased had significant debts at the time of death. Without probate, a creditor of the deceased has 2 years to make a claim against the estate. With probate, the creditor’s claim period can be shortened to 90 days after which the claim is barred.

Apart from these relatively practical legal matters the surviving spouse must also deal with the deceased’s taxes. On the income tax side, the survivor must see to it that the decedent’s tax forms are filed for the year of death. The survivor can still file jointly for the year of death, claiming the additional deductions and exemptions for the deceased, but will have to file as single thereafter.

Additionally, depending on how much the couple owned, there may be estate tax issues to resolve. If the deceased’s net worth was more than $5.4 million then a federal estate tax return may have to be filed. If not, then the survivor may still wish to file an estate tax return in order to elect “portability” and preserve the deceased’s unused estate tax credit in case the survivor might have a taxable estate at death.

These are just some of the issues facing the surviving spouse when his or her partner passes. If you or someone you know is going through this difficult time you should contact your attorney for help in resolving the legal matters death can raise.

Professionals with expert knowledge in diverse fields such as law, medicine, financial planning and accounting and tax practice, the FAL Senior Transition Pro Team is ready and qualified to give factual, accurate and unbiased answers to your senior life transition questions. The Senior Transition Pro Team and FAL Approved Vendors is what we bring to the table for our clients. For further information, click Services.

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