Estate Planning and Separation From a Spouse
It often happens that married couples separate, but legally, they never finalize their divorce. They may live like this for years, putting off legal divorce whether out of procrastination, or purposely, for whatever benefit they may see the maintenance of the marriage providing.
Either way, when someone passes away, there can be problems when separated spouses remain legally married. Without a complete estate plan, your separated spouse may still inherit property you may not want him or her inheriting.
No Legal Separation
Florida has no legal separation. In all respects, when you pass away, if you have not obtained a legal divorce from a court, your spouse will still inherit whatever he or she would inherit—even if you’ve been separated for many years, and had little or no contact with him or her.
Note that this is independent from some separate agreement, like a prenuptial agreement, that waives inheritance rights from the other spouse.
Disinheriting Spouses
You can avoid this situation, but you will have to do so by disinheriting your spouse through your estate documents. And while this is better than having no estate documents at all, it still isn’t completely foolproof because you cannot legally disinherit a legally married spouse completely.
Regardless of what you put in your estate documents, your surviving spouse will have the right to live in and inherit your homestead property. If possible, you can get a surviving but separated spouse to agree to waive this right.
Your surviving but separated spouse, will still have a right to 30% of what you own, again, even if you have an estate plan that dictates otherwise.
Remember as well that any assets that you leave to a minor child, will still be controlled and managed by your surviving spouse if he or she is the parent of that child.
Of course, one guaranteed way to avoid the spouse inheriting is to actually get divorced. But be aware that a spouse’s right to inherit is cut off by the entry of the final judgment dissolving the marriage—not the filing of the petition for divorce. Depending on the issues in your divorce, you may want to start that process as early as possible.
Assets Outside of Probate
You have some flexibility with non-probate assets—assets that would transfer automatically on your passing, outside of probate. These assets, such as transfer on death accounts, some insurance policies, and some retirement benefits, can have beneficiary spouses removed at any time.
Surrogacy and Non-Inheritance Rights
Remember that your spouse may also be your health care surrogate, or your power of attorney, in the event of your incapacitation, and you may not want that if you are separated.
The good news is that in these estate matters that don’t involve inheritance of property, you can designate (or remove) whomever you want to take on these roles. Just make sure to revisit your estate plan on separation, to make sure that your estate documents reflect these changes in your life.
If you’re getting separated or divorced, call the West Palm Beach estate planning lawyers at The Law Offices of Larry E. Bray today for help updating and reviewing estate planning documents.
Sources:
floridabar.org/the-florida-bar-journal/estate-planning-issues-in-a-divorce-situation-ii-an-update-and-standing-orders/
floridabar.org/the-florida-bar-journal/estate-planning-death-soon-after-divorce/