Surviving Spouse

The loss of a spouse is a deeply emotional and challenging experience. 

Amidst the personal and emotional turmoil, the surviving spouse must also navigate various legal aspects.

It pertains to their status as beneficiaries and partners in the deceased’s estate

This blog aims to shed light on the rights and responsibilities of surviving spouses from a legal perspective.

Intestate Succession Of Surviving Spouse

When a person passes away without a valid will or estate plan, their assets are subject to the laws of intestate succession. 

In such cases, the surviving spouse has certain statutory rights to inherit a portion of the deceased spouse’s estate. 

These rights vary from jurisdiction to jurisdiction but often include a share of the marital property.

It may encompass real estate, financial assets, and personal possessions.

Elective Share

In some jurisdictions, surviving spouses have the option to claim an elective share of their spouse’s estate who is deceased.

This is even if the deceased left a will that excluded them from the inheritance. 

The purpose of the elective share is to protect surviving spouses from being disinherited unfairly. 

The specific rules and calculations for the elective share can be complex.

Also, surviving spouses must seek legal counsel to understand their rights and make informed decisions.

Estate Administration

Surviving spouses may have a significant role to play in the administration of their deceased spouse’s estate. 

If named as the executor or personal representative in the will, they have the legal responsibility to oversee the distribution of assets.

Even if not appointed executor, surviving spouses are often entitled to receive information about the estate’s administration.

They may have the right to contest the will if they believe it invalid.

Jointly Held Property

Many married couples hold property jointly, such as real estate, bank accounts, or investments

In such cases, the surviving spouse typically becomes the sole owner of this asset.

This will be upon the other spouse’s death without probate

However, consulting with an attorney is essential to ensure a smooth transfer of jointly held property and address potential tax implications.

Estate Taxes

Estate tax laws can significantly impact the distribution of assets to surviving spouses. 

Depending on the estate’s jurisdiction and size, there may be federal and state estate taxes to consider. 

Surviving spouses are often eligible for certain tax benefits, such as the marital deduction.

It allows them to inherit assets from the deceased spouse without incurring estate tax. 

Proper estate planning helps minimize the tax burden on the surviving spouse and the estate.

Pre- And Post-Nuptial Agreements

Pre- and post-nuptial agreements can be critical in defining spouses’ financial rights and responsibilities. 

Surviving spouses should consult their legal counsel to review any existing agreements.

It helps to understand how they may impact their entitlements in the event of their spouse’s passing.

Example: Trust For The Surviving Spouse

Background Scenario:

Alice and Bob, a married couple with children, want to ensure their surviving spouse has financial security while protecting their children’s inheritance.

Will Clause:

“I, Alice Johnson, hereby establish a trust for the benefit of my husband, Bob Johnson, in the event of my death. This trust shall be funded with a portion of my assets, and Bob shall receive the income generated by the trust during his lifetime. Upon Bob’s passing, the remaining trust assets shall be distributed equally among our children, Jane and Mark.”


Alice is the testator, and Bob is her surviving spouse in this scenario.

Instead of directly giving all assets to Bob, Alice has created a trust for his benefit.

Bob will receive income from the trust during his lifetime, ensuring his financial security.

After Bob’s passing, the trust assets will be divided equally between their children, Jane and Mark.

This arrangement protects both the surviving spouse and the inheritance of their children.