Marriages end for many reasons. They can also end in many ways. While divorces are the most common method of ending marital relationships, they’re not the only solution. Even today, many people choose to legal separation instead of divorce, or at least as a precursor to marital dissolution.
A legal separation is an essential tool for putting distance between you and your spouse. However, it can make things complicated, especially if you’re concerned about your estate. Here’s what you need to know about how legal separations affect estate planning and what you can do to ensure your wishes are followed.
How Legal Separation Differs from Divorce
Legal separations are the process of disentangling your finances and legal obligations from your partner. In many ways, it’s a “step down” from getting a divorce. A separation provides most of the benefits of a divorce without officially ending your marriage.
In a legal separation, you take most of the same actions as you would in a divorce. You work with a mediator or judge to separate your finances from your spouse. If you have children, you’ll determine child support and custody. You’ll divide your marital assets, and if it’s deemed necessary, a spousal support (alimony) order will be put in place.
So how do the two processes differ? The biggest difference between divorces and legal separations is simple. In a legal separation, you’re still technically married, and you’re genuinely single after a divorce. If you’re legally separated from your spouse, you still need to mark yourself as married on forms, and you cannot remarry.
This means that a legal separation is easily reversed. It can also be converted into an actual divorce. That’s why it’s sometimes seen as a stepping stone to total divorce. Both partners can explore how the separation makes them feel and decide whether to remain separated, get divorced, or end the separation entirely.
There are several reasons why you might choose a legal separation over a divorce. Some people have moral objections to actual divorces, so they prefer separations since the marriage isn’t ended. Other people don’t want to officially end their marriage and prefer a separation since it can be reversed.
How Legal Separation Impacts Estate Planning
The same element that makes legal separations unique is what causes them to complicate your estate planning. Spouses have the legal right to inherit from each other. Simply getting a separation does nothing to end that right. Since you’re still legally married, your former partner may be judged as able to inherit from you and vice versa.
In California, this can get particularly muddy. California probate law states that “A decree of legal separation which does not terminate the status of husband and wife is not a dissolution” of marriage. Furthermore, it makes it clear that only “dissolutions of marriage” automatically end a person’s status as a “surviving spouse” if their legal partner should die. This implies that legally separated spouses can still inherit through intestate succession. On the other hand, the case Lahey v. Bianchi sets a precedent that a legally separated widow was not eligible for inheritance.
If you want to clarify the situation for your heirs, you’ll need to take additional action. Here’s how you can make your estate planning specific enough to stand up in probate court and enforce your final wishes.
How to Improve Your Estate Planning
Whether you’re considering a legal separation or you already have one, don’t worry. You can take control of your estate no matter what. It just takes a little more work. Here are a few tips on how to make your estate more secure if you’re separated from your spouse.
Update Your Will
The most important thing you can do for your estate is to write a will. Your will designates how your estate will be handled and who should get what. Typically, married people can only use their will to dictate where half of their property goes. The other half of the estate is automatically considered the marital property of the surviving spouse.
However, if you’re legally separated, you don’t need to worry about your spouse inheriting 50% of your estate. You just need to specify that your spouse doesn’t get anything. Updating your will also ensures that any past wills that designated your spouse as your heir are no longer valid.
Change Beneficiary Rights
Along with your will, you should also change the beneficiary rights of all your trusts and accounts. If your partner is still named a beneficiary on life insurance policies or retirement accounts, they will automatically inherit those funds. Changing your beneficiary rights prevents that from happening.
Note that you can’t change beneficiaries on these types of accounts and policies while you’re still going through the separation process. Before the separation is finalized, these items are considered joint property. However, as soon as the split is legally confirmed, you can change the beneficiaries to be whoever you want.
Set Up a Trust
The most secure method of ensuring your estate is used the way you want is to set up a trust. A trust is similar to a corporation in that the trust itself is independent of the person who benefits from it or runs it. Trusts are managed by trustees, who will follow the rules built into the trust’s structure.
A good trust continues even after the initial beneficiary passes away, providing a coherent thread from before death to afterward. A living trust will allow you to continue using and running your estate while you’re alive, then give your heirs and trustees guidance after you’re gone.
Make Sure Your Final Wishes Are Followed
Regardless of your marital status, you deserve to have your final wishes followed. Whether you’re married, divorced, or legally separated, you should put in the planning to make sure your estate planning covers your needs. Whether that means changing your inheritance or writing your first will, it can make all the difference to your family and friends after you’re gone.
If you want to make sure you’re safe, you should reach out to an experienced attorney and discuss your situation. The right lawyer will help you design an estate plan that’s right for you. Take action today to make sure you’re covered.