Livens & Reed, PLLC

Separation versus divorce in estate planning

When a person dies estranged from his or her spouse but the couple is not legally divorced, it can lead to a host of issues with an estate. More couples are opting for long-term separation instead of divorce and, in some situations, a separation does not extinguish spousal rights and privileges. In Texas and elsewhere, problems can erupt in estate planning without a final divorce decree.

In the case of the recent deaths of Kate Spade and Anthony Bourdain, both were amicably separated from their spouses, but not divorced. After their untimely deaths, each of their respective estranges spouse remained as beneficiaries of their estates. As the legal next of kin, they control all immediate legal decisions as well as control over funeral and interment decisions.

For some, it may be beneficial to draft a legal health care directive. This legal document is state-specific and allows one to designate someone other than a spouse to make health decisions in the event of death or incapacitation. Experts in Texas recommend including funeral arrangements in the document and alerting key people and attorneys to its existence.

Estate planning is vital in the event of a debilitating health emergency or death. By having open communication with an attorney about a separation and impending divorce, changes can be made to remove estranged spouses from estate plans, wills and legal health care documents. With the help of a lawyer, a person can devise a solid estate plan can to help ensure that his or her final requests and wishes are carried out.

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