Separation, Legal Separation, And Your Estate

It would be ideal and easy, from a probate standpoint, if people were either married, or divorced. But reality says otherwise, because often, people separate—they are, for all practical purposes, divorced, and treat and consider themselves as such, but there is no legal document dissolving the marriage, at least, not yet.

But because some people in this situation consider themselves divorced, they certainly may not want each other inheriting their things or property. But without a legal court document dissolving the marriage is there a way to avoid that from happening?

Legal Marriage Counts

For all purposes, the law will consider you married to your separated spouse, which means that they will inherit property, and in fact, they may even do so overriding anything that you put in your will or other estate document, because estate documents cannot override the rights of a married spouse to inherit property.

Different Kinds of Separation

But when it comes to being separated, not all separations are the same. You can obtain a legal separation, memorialized by a court, but few couples that separate ever bother with this step. But you can still be legally separated, even without a court order.

Legally separated spouses do not maintain the same rights to inherit as a married couple would, even though the marriage is still legally intact. But the distinction between being separated and legally separated is an important one.

To be considered legally separated, a spouse must have expressed an intent to end the marriage, with corroborating objective evidence of that intent. Just living under separate roofs, will not constitute legal separation (and in fact, there are cases where people can still live under the same roof, and still be considered legally separated), although living separately it is evidence of a legal separation. There must also be an intent to actually end the marital relationship.

This is important because some couples do live apart, living separate lives, but yet, have no real desire or intent to end the marriage.

What Happens When You are Legally Separated?

If you are legally separated, the court treats both parties as if they are divorced; this will cut off a spouse’s right to inherit property if the other spouse dies intestate (without a will), as would normally happen. It also will make enforceable, any provision in a will that excluded a spouse from inheriting, something that wouldn’t be allowed for legally married and un-separated couples.

Change Your Estate Plan

Note that if you did include your legally married spouse in your estate plan documents, and you are legally separated, that doesn’t necessarily negate anything you put in your will or trust. Once you get a legal separation, you should revisit any pre-existing estate plan documents or your separated spouse will still inherit whatever he or she is supposed to under your estate plan documents.

If you had no estate plan documents though, your ex would not inherit any property—assuming you are considered to be legally separated.

Call the Torrance will and estate attorneys at Samuel Ford Law today for help with your estate plan, if you are separated or about to be separated.

Sources:

selfhelp.courts.ca.gov/divorce-california/legal-separation

forbes.com/advisor/legal/divorce/california-legal-separation/