A Surviving Spouse and Probate

By Larissa Bodniowycz, J.D.

A Surviving Spouse and Probate

By Larissa Bodniowycz, J.D.

The death of a spouse is a traumatic experience whether it occurs unexpectedly or after a long battle with disease. On top of the emotional loss, the surviving spouse must take care of tasks that arise when their loved one passes away, such as planning a funeral and sorting out the deceased spouse's affairs.

Elderly woman taking off her glasses, sitting in her home

The probate process is often particularly daunting because for most surviving spouses, it is new territory and there are a lot of laws and rules involved. The following are some of the basics about the probate process for a surviving spouse.

Probate Defined

Probate is a formal legal process that carries out the instructions in the deceased's will and distributes their probate assets.

Probate assets are property that are owned solely by the decedent and cannot be transferred without a court order. Property such as a car or house titled in the decedent's name only, and personal property like jewelry, are typically the most significant probate assets. Shared titles, assets held in trust, and assets that list a beneficiary are generally not probate assets.

The process usually takes about a year, but can be shorter or longer depending on the size of the estate and complexity of the will. If the deceased left very few assets, then a simplified, faster probate process can be requested.

Surviving Spouse's Duties in Probate

At the beginning of the probate process, the court appoints someone to manage the process, called the administrator or the executor of the estate. The person who serves in this role is determined by what the will says, or if there is no will, by who state law says serves. Most people appoint their spouse to serve as their administrator and the spouse is typically the first in line to serve under state default rules.

As administrator of the estate, the surviving spouse has important duties. Most notably, they must follow the instructions in their spouse's will, interact with the court, and ensure that their surviving spouse's assets are preserved during the probate process. The surviving spouse does not have to accept their role as administrator. They can decline, but more often they hire a probate attorney to help them through the process.

Surviving Spouse's Share of Probate Assets

In almost all cases, the surviving spouse is entitled to some or all of their deceased partner's probate assets. If the deceased spouse died with a will, the surviving spouse gets the amount set out in the will. If the will did not provide for the surviving spouse or left them only a nominal percentage of the estate, the surviving spouse can usually claim an elective share. An elective share is a portion of the deceased spouse's estate that they can claim instead of what they were left in the will. Elective share laws, which vary by state, prevent a surviving spouse from being unfairly left with little or no part of their spouse's estate.

If the deceased spouse died without a will, the state's intestacy laws will determine what percentage of the probate estate the surviving spouse receives. The percentage depends on factors such as whether each spouse had children together, or outside the marriage, but is usually the majority or all of the estate.

The death of a spouse is a lot to handle. Asking friends, family, and trusted professionals to help you through the emotional and administrative sides of the loss is highly recommended.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

Protect your loved ones.

Start my estate plan