What should I do first when my spouse dies? What legal, financial, and tax steps can’t wait? What deadlines could cost me money if I miss them? Should I update my Estate Plan right away? Can I change the Trust after my spouse is gone? What is portability—and why is it worth millions? Should I get appraisals or do a Roth conversion? How do I protect my assets, reduce taxes, and avoid costly mistakes as a widow or widower?
By James L. Cunningham Jr., Esq.
Let’s not sugarcoat it: losing your spouse is one of life’s most devastating events. It shatters your sense of identity, stability, and direction. People often say they feel like they’ve lost a limb—or half of themselves. And while your emotional world may feel frozen, the legal and financial world keeps moving whether you’re ready or not.
That’s the problem we’re going to solve in this article.
I’ve worked with hundreds—maybe thousands—of widows and widowers over my career, and they all ask me the same thing: “What do I do now?”
This article is a map through the fog.
As a reminder, these articles are never actually legal advice, but only an educational guide that can help you get started before you consult a qualified attorney.
I’m going to walk you through the practical, legal, and financial steps you absolutely must consider after the death of your spouse—especially when it comes to your Estate Plan. We’ll talk about time-sensitive tax opportunities, property transfers, income changes, trust administration, and even what you can and cannot change in your estate documents after your spouse is gone.
Some of this is technical. Some of it is emotional. All of it is critical.
So, if your spouse just passed away—or if you’re helping someone who’s going through it—please read this carefully. You may want to bookmark it or print it out. You’re going to need it.
And remember this: you are not alone. I’ve guided plenty of people through the legal process after the loss of a spouse, and you can do it, too. You don’t have to figure it out all at once. But you do have to take the first step. We at CunninghamLegal are here to help. Schedule a free call today.
Do I really need to act right away after my spouse dies?
Yes, you need to take action right away after your spouse dies. I’ll be blunt: waiting too long can hurt you. Badly. I know you’re grieving. You may feel like you’re underwater. You may not have slept. You may not even remember the last time you ate a full meal. But here’s the reality: the law doesn’t wait for you to be ready.
Well-meaning friends may tell you, “Don’t do anything for a year.” And emotionally, that might sound like good advice. Not getting married for a year, for example, is generally good advice. But not seeing a savvy living trust lawyer and financial advisor? It can lead to disaster.
Let me tell you about a client—we’ll call her Joan. Joan’s husband passed away unexpectedly. Friends circled the wagons and told her, “You need time to heal. Don’t make any decisions until you’re ready.” So she didn’t.
What Joan didn’t realize was that her late husband had a pension that required a spousal election within 90 days. She missed the deadline and lost thousands per year for the rest of her life.
Then she found out about portability—the federal estate tax exemption for surviving spouses. It has to be filed within nine months. She missed that too. Poof—another $15 million in tax protection gone.
Joan’s not alone. The “do nothing” approach costs families real money and legal protection every single day.
What should you do? Not everything, and not all at once. But some things need to happen right away. Within 30 days. Within 60 days. Within 90 days. Within 9 months. Within 5 years.
Taking action doesn’t mean you’ve “moved on.” It means you’re helping to make sure your family doesn’t lose even more than they already have.
What are the very first things I need to do after my spouse dies?
Here’s a short list of things that need to be done after a spouse passes away. And no, it’s not about planning a memorial or forwarding mail. It’s about protecting your financial and legal foundation.
- Gather all estate documents: That means the Living Trust, Will, Advance Health Care Directive, Durable Power of Attorney, and any amendments or restatements.
- Collect asset information: Bank and brokerage statements, life insurance policies, property deeds, retirement accounts, and anything with a title, balance, or beneficiary.
- Call a savvy estate attorney: Not a generalist. Not your brother’s divorce lawyer. Maybe not even the lawyer that wrote your living trust. You need someone who works with post-death administration and estate tax strategy every single day. This is not an area of the law for general practitioners and for many lawyers who only set up Living Trusts.
- Notify key institutions: Social Security, pension administrators, financial advisors, insurance companies, and mortgage lenders need to know. But do this with legal guidance. Don’t waive rights or trigger unexpected taxes by accident.
- Get a death certificate: Order at least 10 certified copies. You’ll need them constantly.
If this feels overwhelming, that’s normal. But here’s the good news: when you get a great team around you, you don’t have to handle all of this alone. Delegate what you can. A good estate lawyer and CPA will guide you step-by-step. Schedule a free call with CunninghamLegal today.
What legal deadlines should I worry about?
The clock starts ticking the moment your spouse passes away. Here are the critical legal and tax deadlines most people never hear about—until it’s too late:
Within 30 Days
- Lodge the Will: If your spouse had a Will, it must be lodged with the probate court in the county where they lived—even if there won’t be a probate.
Within 60 Days
- Notify Beneficiaries: If there is a Living Trust that becomes irrevocable at death (which most do), California law requires that you notify all heirs and beneficiaries—even people who were disinherited. Yes, really.
- Serve Trust Copy or Notice of Irrevocability: If you don’t serve a copy of the Trust along with the notice, the timeline for challenging the Trust gets extended.
- File Change in Ownership of Real Estate with County Assessor: This prevents unnecessary property tax reassessment.
Within 90 Days
- Notify Medi-Cal: If the deceased ever received Medi-Cal benefits, you must notify the California Department of Health Care Services.
Within 150 Days
- File Death of Real Property Owner Form: Failure to do this can lead to penalties and reassessments down the line.
Within 9 Months
- File IRS Form 706: This is your chance to claim the deceased spouse’s unused estate tax exemption. This one step could preserve up to $15 million in tax-free transfers. This is about creating “portability” of the exemption.
What is portability, and how can it protect your estate?
Portability is a huge tax-saving opportunity that can protect millions in assets –but you have to meet the deadline. Here’s where things get interesting—and where massive wealth protection is hiding in plain sight.
Portability allows you, the surviving spouse, to inherit your spouse’s unused federal estate tax exemption. That’s up to $15 million in 2025. If you file properly, you get to stack that on top of your own exemption. That’s $30 million you can pass to your heirs tax-free.
But here’s the catch: it’s not automatic. You must file IRS Form 706 within nine months of death (plus a six-month extension if needed).
Even if you’re not ultra-wealthy now, you should still file. Why? Because the estate tax exemption is highly political and could be lowered at any time in the future by Congress. Filing now locks in today’s higher exemption.
We’ve had clients with “just” $5 million in assets who skipped the form and regretted it a decade later when their portfolio grew. Don’t make that mistake.
How does my income change after my spouse dies?
For most people, after a spouse dies, the surviving spouse’s income goes down. Way down. Here’s what you may be facing:
- Pension reductions: If your spouse had a pension, survivor benefits are often just 50%-60% of the original amount.
- Loss of Social Security: You only get the higher of your two benefits—not both.
- Missing investment income: If brokerage accounts or rental properties were in your spouse’s name, income may be frozen until legal ownership is transferred.
I’ve had clients who lost $50,000 or more in annual income after their spouse passed—without realizing it right away.
That’s why the first step we take with clients is a cash flow check-up. Know what’s coming in, what’s going out, and where the gaps are.
Can I save money on taxes as a surviving spouse?
Yes, you can save money on taxes as a surviving spouse. And it could be a lot of money.
Here’s what the IRS offers widows and widowers: for the year your spouse dies plus the two years after, you can file taxes using the “Qualifying Widow(er)” status. That means:
- Lower tax brackets
- Bigger standard deduction
- Better phase-out limits
These three years create a unique window of opportunity for tax planning.
One of the smartest strategies? Strategic Roth Conversions.
Let’s say you have a $2 million traditional IRA. During your widow(er) years, you may be in a lower tax bracket. You could convert part of that IRA into a Roth IRA—paying less tax now, and leaving your heirs a tax-free inheritance later.
A savvy lawyer will coordinate this with your CPA and financial advisor to make sure it’s done right. Schedule a free call with CunninghamLegal today.
Should I get my home or investment property appraised after my spouse dies? What about investments?
Yes, you must get your home and investment property appraised after your spouse dies. No hesitation. Absolutely yes.
When a spouse dies, most community property assets—including real estate—get a full step-up in basis to current market value. That means you can:
- Sell the property soon and avoid capital gains tax
- Start fresh on depreciation schedules for rental property
- Lock in tax savings for future generations
But to claim that step-up? You need proof. That means a professional appraisal—usually within the first year after death.
Let me be clear: if your spouse dies and you don’t appraise your real estate, you could be throwing tens or even hundreds of thousands of dollars in tax savings out the window.
The value of other investments should also be recorded as of the date of death to ensure a step-up basis. Do not neglect these actions.
Please also see my blog and webinar on “What to Do With Real Estate After Someone Dies (and What Not to Do)
What is a 754 election, and why does it matter for investors?
If your spouse owned a partnership interest—think private real estate funds, joint ventures, or syndications—you may be eligible for a huge tax basis adjustment.
But only if someone files a Section 754 election with the partnership’s tax return.
This allows your stepped-up basis to be recognized inside the partnership. If you miss it? You could face double taxation later—on phantom gains.
This is an obscure, technical rule, but it can save you a fortune.
I’ve seen accountants miss this and cost clients millions. Make sure your CPA and the partnership’s general partner are on the same page. And don’t assume they know—ask.
Can I change my Estate Plan after my spouse dies?
Whether or not you can change your Estate Plan after your spouse dies depends on the type of plan—and how your assets are structured.
Here’s the short version:
- You can always change your Will.
- You can usually amend your Living Trust—but only the portion that’s still revocable.
- You may be limited by B Trusts or irrevocable Trusts.
If your spouse had a classic AB Trust structure, part of the assets may now be locked in an irrevocable B Trust. That means you can’t just rewrite the inheritance instructions.
Unless…
You have a power of appointment.
That’s a special clause in the Trust that lets the surviving spouse redirect or “appoint” the assets to different beneficiaries. Think of it as a legal steering wheel inside an otherwise rigid plan.
If used correctly, powers of appointment can help you adapt your Estate Plan without going to court. But they’re complicated, and they come with rules.
Don’t try to figure this out on your own. Let a qualified California Estate Lawyer like those here at CunninghamLegal walk you through it. Schedule a free call with CunninghamLegal today.
What if my spouse’s Trust or Will is outdated or doesn’t make sense?
This happens all the time.
Maybe the Trust says your son-in-law is the successor Trustee—but you can’t stand him now. Or maybe the distribution plan is based on assumptions that no longer apply. As explained above, some or all of your Living Trust may be revocable and changeable, along with your own Will.
An irrevocable trust may also have a provision for a Trust Protector.
A Trust Protector is someone (not the Trustee) who has limited authority to tweak the Trust language—so it works better in real life. They might:
- Change tax sensitive provisions in an outdated trust
- Appoint a trustee if the person you named while you were alive can’t serve
- Take actions to protect an inheritance from creditors, predators and divorce of the person inheriting
If your Trust has a Trust Protector clause, that person can be your secret weapon in modernizing a dated plan—without triggering a legal battle.
Once again, work with a qualified California Estate Lawyer like those here at CunninghamLegal.
What if I want to disinherit someone after my spouse dies?
This gets tricky.
You can disinherit someone from your own assets and revocable trust.
But if your spouse left part of the estate in a B Trust or an irrevocable Trust, your hands may be tied—unless that power of appointment allows you to redirect the inheritance.
One of the most common cases I see is a widow or widower who no longer trusts their adult child’s spouse. If you’ve got concerns about how money will be managed—or mismanaged—now’s the time to talk to your California estate attorney about your options.
Sometimes the best solution isn’t disinheritance. It’s restructuring the inheritance: using a protective Trust, delaying distributions, or naming a third-party Trustee. Schedule a free call with CunninghamLegal today.
Final Thoughts: This Is Hard, But You’re Not Alone
Losing your spouse is like getting hit by a freight train—then being asked to file paperwork and make legal decisions while you’re still on the tracks.
I’ve seen the pain. I’ve sat in the room with clients who’ve been married 40, 50, 60 years. I’ve walked them through these steps—one by one—until they could breathe again.
And I can promise you: you can do this.
But don’t try to do it alone. Bring in a team—lawyer, CPA, financial advisor—who can carry the weight with you.
There are forms to file. Deadlines to meet. Properties to retitle. Taxes to minimize. Appraisals to order. Notices to send.
And through it all, your job is simply this: put one foot in front of the other.
We’ll walk with you.
What We Do
At CunninghamLegal, we help people prepare for some of the most critical moments in their lives—and then we guide them when those moments arrive.
Whether you’re navigating the loss of a loved one, protecting your estate, or building a long-term wealth strategy, our team is here to support you with clarity, compassion, and deep expertise.
We provide legal services in:
- Estate Planning
- Trust Administration
- Tax Planning
- Business & Contract Law
- Elder Law & Asset Protection
- And much more
We have offices throughout California, and we offer in-person, phone, and Zoom appointments to make it easy for you to connect—no matter where you are.
To schedule a consultation, just call us at (866) 988-3956 or schedule a free call.
Many of our clients also find our free legal webinars incredibly helpful. We cover a wide range of topics, including Estate Planning, retirement, taxes, trusts, probate, living in California, asset protection, and more.
We look forward to helping you plan wisely, live confidently, and protect the people you love.
Warm regards,
James L. Cunningham Jr., Esq.
Founder, CunninghamLegal
We guide savvy, caring families in the protection and transfer of multi-generational wealth.
