Can Your Spouse Inherit If You Are Separated?

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Can Your Spouse Inherit If You Are Separated?

Can Your Spouse Inherit If You Are Separated?

Female and man's hands with broken heart

If you are separated from your spouse, it could impact who inherits your estate. The law in California says that depending on the circumstances, your spouse may still be entitled to part of your property. This means that you need to update your estate plan if you become separated.

Legal Separation

Legal separation is different than dissolution or annulment of a marriage. When a marriage is dissolved (in a divorce) or annulled, you lose the right to inherit from your ex-spouse and vice versa because the marriage is over. In contrast, you remain legally married to someone if you obtain a judgment of legal separation from a court.

At least one court has determined that a judgment of separation also severs marital property rights, including the ability of a spouse to inherit from the other spouse under the intestate succession rules. (Estate of Lahey (1999) 76 Cal.App.4th 1056.) Practically speaking, if you do not have a will and you get a legal judgment of separation, your spouse cannot inherit from your estate if you pass away.

Informal Separation

Many couples do not obtain a legal judgment of separation. In that case, whether the surviving spouse inherits is much less clear. A judge may need to determine whether the informal separation severed marital property rights. The judge may look to whether at least one of the spouses had the intent to end the marriage, and whether there is evidence of conduct that furthered that intent. (In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, 1158-59.) Ideally, spouses should avoid this issue by either obtaining a formal separation or creating estate plans so determining inheritance by intestate succession is unnecessary.

Estate Planning and Separation

If you plan to separate from your spouse or if you have recently separated (legally or informally), you need to create or update your estate plan. In particular, you should work with a lawyer to draft or update your will. In your will, you list who will inherit your property should you pass away. You can provide for your spouse from whom you are separated, or you can disinherit him or her entirely if you so choose. For those who already have a will, a separation is a good time to review the entire will and update it as needed.

Are you recently separated from your spouse and need estate planning help? Angela Klenk, Esq. and the team at Beach Cities Estate Law couple personalized attention to your estate plan with big law firm experience for a winning combination to give you peace of mind. To schedule a case evaluation, visit Beach Cities Estate Law online or call Angela’s office at (424) 400-2125.

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