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The Heritage Law Center, LLC Blog

Estate Planning for Surviving Spouses

POSTED ON: September 4, 2019

When a spouse passes away, a lot of attention goes to administering their estate. But if you’re a surviving spouse, it’s also important for you to focus on your own estate planning documents as soon as you can. You need to make sure you’re protected during your lifetime and that your wishes will be carried out properly should you pass away.

Durable Power of Attorney
A durable power of attorney (POA)is a legal document you can use to designate an agent (attorney-in-fact) to act on your behalf in private affairs, business, or legal matters. It’s particularly important if you become incapacitated or unable to make your own decisions. Efforts the agent can manage include writing checks, paying bills, filing taxes, and signing contracts for the principal’s care. Most durable POAs are immediately effective, even if they won’t be used until needed. This type of POA expires when the principal passes away.

Typically, spouses name each other as the agent. As a surviving spouse, you need to name another trusted person to be your power of attorney, and decide if the POA could be used at any time or only if you become incapacitated. If you don’t have a POA and you become incapacitated, the court would become involved and that would incur costs and delays.

Health Care Proxy
A health care proxy is a document that specifies who you choose as the person allowed to make medical decisions for you while you’re living, in case you’re in a situation where you aren’t able to communicate your wishes, such as a coma or prolonged unconscious state. If your deceased spouse was your health care agent, then the alternate agent, assuming you named one, would become your health care agent.

As a surviving spouse, you should consider whether the alternate is still an appropriate choice. You should also name a new alternate health care agent. Without this document, the court would have to step in to make decisions, and it might make different choices than you would like.

Make sure your updated health care proxy is given to your primary care physician and is on file at your hospital.

Living Will
A living will works in conjunction with a health care proxy by expressing your wishes as to how your designated agent should proceed in certain specific circumstances, such as how and when you wish to receive medical treatment in the event of a terminal illness. For example, you can choose if you want or don’t want feeding tubes, CPR, or antibiotics. A surviving spouse needs to make sure that the person named on this form understands the surviving spouse’s wishes and is able to carry them out.

HIPAA Release Form
The Health Insurance Portability and Accountability Act (HIPAA) form allows medical professionals to share medical information about you with the person(s) you name on the form. If the health care proxy isn’t invoked (being used for legal purpose), you need a signed HIPAA form for someone to be able to speak to your doctors and access your medical information.

Wills and Trusts
As a surviving spouse, you need to update your estate planning documents if your spouse is mentioned in them. This is the time to thoroughly review your estate plan and make sure it would still accomplish what you want.

Beneficiary Designations
Many different types of accounts have designated beneficiaries, including life insurance, annuity policies, bank accounts, pay-on-death bank accounts, pensions, retirement plans, IRAs, and 401(k)s. A surviving spouse should review all designation of beneficiary forms. These include any accounts the decedent left you.

Losing a spouse is incredibly difficult. And on top of that, as the surviving spouse you need to make sure your own estate planning documents continue to protect you and distribute your estate according to your wishes. If you’re in the position where it’s time to do a thorough review of your estate planning documents, let us help you. We’ll work with you to update your estate plan to protect you, your family, and your assets. Contact us at 617.299.6976 or, and we’ll make a free, no-obligation initial consultation appointment.