How does legal separation from a spouse affect my estate plan?
Legal separation between spouses means that the spouses' financial lives are separated without ending their status as a married couple. However, legally, separated spouses are not treated in the same way as a non-legally separated married couple.
Here are some scenarios where legally separate spouses and non-legally separated spouses may be treated differently:
- A legally separated spouse may not inherit from his or her spouse through intestate succession. In this context a "surviving spouse" does not include a legally separated spouse.
- Certain rights afforded a spouse after the death of the other such as temporary use of a family home, establishment of a probate homestead, and family allowances are not available for legally separated spouses.
Although in some respects legally separated spouses and non-legally separated spouses are treated differently, in others, there is no effect. For example, if one spouse names his or her spouse as a beneficiary of a retirement account, legal separation does not affect the survivor even though they were legally separated at the time of death. The survivor would still inherit the retirement account.
Likewise, joint tenant assets are not affected as a result of legal separation, nor does legal separation affect a bequest in a Will from one spouse to another from whom they are legally separated.