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Separation without divorce creates estate planning issues

There will always be a small percentage of married couples in California who separate but never get around to a formal divorce. What are the estate planning consequences when a person dies while separated? That was the case for both designer Kate Spade and expert chef/traveler Anthony Bourdain, who both died recently. Dying while separated and not legally divorced can raise several thorny issues.

It may be surprising to learn that when a separated spouse dies, the estranged spouse is legally in control of the decedent's body, his funeral and, if there is no will, his estate. This is precisely the situation with Bourdain. The marriage was intentionally preserved by the parties out of devotion to their daughter who they continued to co-parent after the separation.

Bourdain publicly dated another woman, but any prospects for their marriage seemed unlikely due to the commitment made to not getting a divorce. The law recognizes the marriage but gives little recognition to the fact that Bourdain and his wife were separated. There are various marital rights that Mrs. Bourdain retains due to there being no divorce.

She still has the right to select to receive a higher amount of Social Security benefits based on his level of benefits instead of hers. Assuming that Bourdain did not take his wife off as beneficiary of his life insurance policies, she will receive the proceeds. If there had been a divorce, some state laws would automatically invalidate the prior spouse as the continuing beneficiary. Such laws were recently upheld by the U.S. Supreme Court.

A surviving spouse in California has the statutory right to take against the will of the decedent. Also, if there is no will, then she will inherit the biggest share of the estate according to the distribution commanded by the state intestacy laws. Thus, the situation is treated nearly exclusively as though the parties had been fully married at the time of death, despite there also being a longstanding separation. If those consequences are not desired, the individual can change various beneficiary designations and take charge of the distributions after death by making a will. The best way for a person facing these factors to seize control is to consult with an experienced estate planning attorney and go forward to correct the problems piecemeal under that trained professional's guidance.  

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