When a married couple creates an estate plan, most of the attention naturally goes toward what happens after both spouses have died. But there is another moment that can be just as important: the death of the first spouse.
That event can change ownership of assets, activate provisions in a trust, affect beneficiary designations, create tax filing opportunities, and alter the plan the surviving spouse will eventually leave behind.
For families in Coral Springs and throughout Broward County, this is one reason an estate plan should be reviewed after a spouse dies. The documents may still be valid, but the circumstances they were designed to address have changed.
And that can make a surprisingly big difference under Florida law.
The First Death Is a Turning Point, Not the End of the Plan
An estate plan for a married couple is usually built around two different deaths.
The first death determines what happens to the deceased spouse’s property and what the surviving spouse receives or controls. The second death determines what ultimately passes to children, other beneficiaries, charities, or other intended recipients.
Those two events are connected.
For example, a couple may have arranged their assets so that the surviving spouse has financial security while certain property remains subject to a particular trust structure. Another couple may have arranged for most assets to pass directly to the surviving spouse.
Both plans can be legally sound. But they can produce very different results later.
The important question after the first death is therefore not simply, “Who inherited?”
It is:
“What did the first death activate, and what does the surviving spouse’s estate now look like?”
What Happens to the Assets After the First Spouse Dies?
The answer depends on how each asset was owned and how the estate plan directed it.
Some property may pass under a will. Some may pass according to a trust. Other assets may pass through beneficiary designations or forms of joint ownership.
This is why looking only at the will is rarely enough.
The surviving spouse and the estate’s attorney may need to review:
- Real estate ownership
- Bank and investment accounts
- Retirement accounts
- Life insurance
- Business interests
- Jointly owned property
- Beneficiary designations
- Trust assets
- Debts and obligations
- Prior gifts
- Property that may be included in the deceased spouse’s taxable estate
The practical problem is that these pieces do not necessarily follow the same path.
A beneficiary designation can control an account without sending it through the will. A jointly owned asset can operate differently from separately owned property. A trust can contain instructions that become relevant immediately after death.
This is one reason the death of a spouse should trigger a full review of the estate plan in South Florida, rather than simply checking off the probate process and moving on.
The Estate Tax Question Begins With the First Death
Estate tax planning can become especially important when a married couple has substantial assets.
For deaths occurring in 2026, the federal basic exclusion amount is $15 million. (It is worth noting that Florida does not currently levy a state level estate tax). An estate generally must file Form 706 when the applicable federal filing threshold is exceeded. But there is another important reason to file: the executor can use Form 706 to elect portability of the deceased spouse’s unused exclusion for the surviving spouse.
That second point is easy to overlook.
Suppose one spouse dies with an estate substantially below the federal exclusion amount. It might appear that there is no reason to think about an estate tax return because no federal estate tax is due.
That conclusion can be premature.
A properly filed estate tax return can allow the surviving spouse to receive the deceased spouse’s deceased spousal unused exclusion amount, commonly called DSUE. The surviving spouse may then be able to use that amount against certain later taxable transfers during life or at death.
In other words, “No estate tax is due” and “there is nothing worth filing” are not necessarily the same thing.
What Is Portability?
Portability allows a deceased spouse’s unused federal estate tax exclusion to be transferred to the surviving spouse.
The surviving spouse does not receive the unused exclusion automatically. The deceased spouse’s estate must make the portability election through a properly prepared Form 706.
For a 2026 death, the normal Form 706 deadline is nine months after the date of death, with a possible six month extension. Certain estates that were not otherwise required to file can also qualify for a simplified procedure allowing a late portability election within five years of the decedent’s death.
That deadline is one of the reasons the issue deserves attention soon after the first spouse dies.
The family may be dealing with grief, probate, property transfers, insurance claims, financial accounts, and a long list of practical problems. The tax filing may feel like something that can wait.
Sometimes it cannot.
Why the Surviving Spouse’s Future Estate Matters
Imagine a married couple with substantial assets.
The first spouse dies. Most of the property passes to the surviving spouse, who continues living in the family home, maintains the investment portfolio, and eventually receives additional assets.
Years later, the surviving spouse dies.
At that point, the estate is measured again.
The surviving spouse’s estate may look very different from the estate that existed at the first death. Investments may have appreciated. Real estate may have increased substantially in value. Retirement accounts may have changed. The surviving spouse may have received additional property or made significant gifts.
That means the planning opportunity at the first death can have consequences years later.
Stuart Reinfeld explains the practical issue this way:
“The surviving spouse should not assume that the estate plan is finished simply because the first estate was administered. The first death can change the legal and financial circumstances that the original plan was built around.”
That review does not necessarily mean rewriting everything.
It means determining whether the structure still accomplishes what the couple originally intended.
Does a Trust Automatically Save Estate Taxes?
No.
This is an important distinction because older estate planning materials sometimes make trusts sound like tax saving machines.
A revocable living trust can be an important part of an estate plan, but simply placing assets in a revocable trust does not automatically eliminate federal estate tax.
The tax consequences depend on the actual structure, ownership, applicable exclusions, elections, deductions, beneficiary arrangements, and the circumstances surrounding the transfer.
The more useful question is therefore:
How does the trust operate after the first spouse dies, and what does that structure accomplish?
In some estate plans, trust provisions may help determine who controls property, who benefits from it, and how it is treated after the first death. In others, assets may pass directly to the surviving spouse.
The answer depends on the plan.
That is why copying a trust structure from another family is a particularly bad form of estate planning.
When the First Death Changes the Tax Strategy
A married couple may have several potential ways to structure property at the first death.
One approach may leave property directly to the surviving spouse. The federal marital deduction can generally allow qualifying property passing to a surviving U.S. citizen spouse to be deducted from the deceased spouse’s gross estate.
That can defer estate tax rather than necessarily eliminate it.
Other arrangements can involve trusts or other structures designed to address control, beneficiary protection, tax planning, or a combination of these concerns.
The appropriate structure depends on the family’s circumstances.
For example, a couple with a relatively straightforward estate may have different concerns from a couple who owns several properties, a closely held business, significant investments, or substantial assets expected to appreciate.
Alan Reinfeld explains the practical point this way:
“The first spouse’s death is often the moment when the surviving spouse’s estate plan needs to be reconsidered. The plan was created for two people. After one dies, it is a plan for one.”
That is especially important when the family’s wealth is likely to change substantially over time.
Case Study: When “Everything Went to My Spouse” Was Not the Whole Story
Consider a hypothetical couple living in Coral Springs, Michael and Laura.
They own their home, investment accounts, several retirement accounts, and other assets with a combined value of approximately $10 million.
Michael dies first.
The immediate result appears simple. Laura receives the property intended for her, the family home remains in her hands, and there is no federal estate tax bill because the estate is below the 2026 $15 million basic exclusion amount.
The family assumes the tax issue is finished.
But Laura’s attorney asks a different question:
Was portability elected?
Michael’s estate may have had unused federal exclusion available for Laura. If the executor makes the appropriate election, that unused amount may become available to Laura for later taxable transfers.
Now consider what happens over the next decade.
Laura’s investments appreciate. She sells one property and reinvests the proceeds. The family home increases substantially in value. She also receives additional assets.
By the time Laura dies, her estate is considerably larger than the estate Michael left behind.
The first death did not produce an immediate estate tax problem. But decisions made at that time could still affect the tax position of Laura’s eventual estate.
The lesson is not that every couple needs a complicated trust structure.
The lesson is that the first death can create decisions whose consequences will not become visible until years later.
What Should the Surviving Spouse Review?
After the first spouse dies, a surviving spouse should consider reviewing at least the following:
- How each asset passed: Determine which assets passed through a will, trust, beneficiary designation, joint ownership, or another mechanism.
- Whether an estate tax return should be filed: Even when no estate tax is immediately owed, filing may be important if the estate wants to elect portability.
- Whether portability was elected: If the surviving spouse may benefit from the deceased spouse’s unused exclusion, confirm whether the election was made and whether the return was properly prepared.
- The surviving spouse’s new asset picture: The surviving spouse may now own or control assets that were previously divided between two estates.
- Future appreciation: An asset’s value today is not necessarily the value that will matter at the surviving spouse’s death.
- Beneficiary designations: Retirement accounts, insurance policies, and other accounts should be reviewed to determine whether their beneficiary designations still reflect the family’s intentions.
- Trust provisions: If a trust was involved, determine what happened to the trust at the first death and what rights and obligations now apply.
- The surviving spouse’s own estate plan: The surviving spouse is now the person whose eventual estate plan will determine what happens to the remaining assets.
That last step is often overlooked.
The estate plan should evolve because the family has changed.
What If the Surviving Spouse Remarries?
Remarriage can introduce another layer of planning.
Federal portability rules contain a last deceased spouse limitation. Generally, a surviving spouse’s DSUE amount is tied to the spouse who was most recently deceased at the relevant time. The IRS rules also address how remarriage can affect the use of a previously received DSUE amount.
That means remarriage should prompt another estate planning review.
The same is true if the surviving spouse:
- Has additional children
- Changes beneficiaries
- Acquires or sells major assets
- Starts or sells a business
- Makes significant gifts
- Moves assets into different ownership structures
- Experiences a major change in financial circumstances
Estate plans have a bad habit of becoming outdated quietly.
What If Nobody Thought About Portability?
There is a useful safety net, but it should not become the planning strategy.
For certain estates that were not otherwise required to file Form 706, IRS procedures provide a simplified method for making a late portability election. Under Revenue Procedure 2022-32, qualifying estates can generally use the procedure by filing a complete Form 706 on or before the fifth anniversary of the decedent’s death.
That does not mean families should wait.
Eligibility requirements matter, and estates that were already required to file a return can face different rules concerning the deadline.
The practical lesson is simple: if the first spouse died without a portability election being considered, ask about it rather than assuming the opportunity is gone.
The First Death Should Trigger a Review, Not a Filing Frenzy
Estate administration can involve a remarkable amount of paperwork.
That does not mean every surviving spouse needs to rebuild an entire estate plan immediately.
The better approach is to identify what changed first.
What assets moved? Have assets remained in trust? What tax elections are available? Do deadlines apply? What does the surviving spouse now own? What will eventually pass from the surviving spouse’s estate?
Once those questions are answered, the family can determine whether the existing plan still makes sense.
For families in Coral Springs, Broward County, and throughout South Florida, an attorney can help review the documents, asset ownership, tax filings, and beneficiary arrangements together rather than treating each document as an isolated problem.
Because the first spouse’s death may be the point where the estate plan changes from a two person plan into a one person plan.
And that is a pretty important change to leave sitting in a filing cabinet.
Frequently Asked Questions
Could a spouse automatically receive the deceased spouse’s unused estate tax exemption?
- No. Portability generally requires the deceased spouse’s estate to make an election by filing Form 706. The surviving spouse may then be able to use the deceased spouse’s unused exclusion amount against certain later taxable transfers.
Does an estate tax return have to be filed if no estate tax is owed?
- Not necessarily. For a 2026 death, the normal federal filing threshold is $15 million for a U.S. citizen or resident decedent, subject to applicable rules. However, Form 706 may also be filed to elect portability, even when the estate is below that threshold.
Does Florida have a state level estate tax when a spouse dies?
- No. Florida does not currently impose a state estate tax or inheritance tax. Estate tax planning for families in Coral Springs and Broward County focuses entirely on federal estate tax rules, portability elections, and asset management structures.
How long does a family have to elect portability?
- The normal federal deadline is nine months after death, with a possible six month extension. Certain estates that were not otherwise required to file may qualify for a simplified late election procedure within five years of the decedent’s death.
Does a living trust automatically reduce estate taxes?
- No. A revocable living trust does not automatically eliminate federal estate tax. The tax consequences depend on how the assets, trust provisions, elections, deductions, and other parts of the estate plan interact.
Should the surviving spouse change the estate plan immediately?
- Not necessarily. The first priority is understanding what changed after the death and identifying any deadlines or tax elections. Once the surviving spouse’s new financial and legal position is clear, the estate plan can be reviewed and changed where appropriate.
What happens to the surviving spouse’s estate when that spouse later dies?
- The surviving spouse’s estate is evaluated based on the assets and applicable tax rules at that later death. The value of assets may have changed significantly since the first spouse died, which is one reason planning decisions made after the first death can have long term consequences.
Can a surviving spouse lose the benefit of a deceased spouse’s unused exclusion?
- The rules are technical. Portability, later taxable transfers, and the identity of the surviving spouse’s last deceased spouse can all matter. Remarriage can also affect the use of a previously received DSUE amount.
Schedule a Consultation with Our Coral Springs Estate Planning Attorneys
If you are navigating the administration of an estate after the death of a spouse in Coral Springs, Broward County, or anywhere in South Florida, you do not have to sort through asset titles, tax elections, and trust provisions alone.
Alan Reinfeld and Stuart Reinfeld help families evaluate how a first death impacts the surviving spouse’s legal and financial reality. Contact our office today to schedule a confidential review of your estate plan and ensure every piece of your structure is aligned for the future.