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Estate Planning When You Are Separated

Today’s modern family can be complex. In fact, today, many spouses have decided to remain permanently separated from their spouses but not go through the process of divorce. We have seen this with the recent deaths of Kate Spade and Anthony Bourdain, both of whom have estranged spouses that are entitled spousal rights arising out of their deaths. This kind of long-term separation can raise complex estate planning issues, as spouses are given certain rights during the marriage that do not terminate until a final decree of divorce.

When a married couple separates, their spouse is still considered their heir entitling them to a wide-range of benefits-from social security benefits to inheritance rights in probate court. As a precautionary, a separated spouse may want to appoint someone other than their estranged spouse to make medical decisions for them. A Patient Advocate Designation allows them to appoint another individual to make decisions regarding their medical treatment, physical, and mental health care. Further, a patient advocate can donate specific organs or the entire body upon the individual’s death.

Moreover, as an estranged spouse, it is important to maintain documentation of your marriage during the time of separation incase a mistake is made on the death certificate that indicates there was a divorce, which can cause the denial of certain benefits like social security. Maintaining documents that can prove the marriage was never terminated will help if you need to submit an Application to Correct a Michigan Death Record with the Department of Health and Human Services. The Department will require proof for every year of marriage to prove that a divorce never took place, as there is a high burden of evidence placed on an individual trying to correct a death certificate.

Thus, it is important to have a discussion with your estranged spouse about the spousal rights that exist, especially if your separation becomes permanent and a divorce is never finalized.

If you have recently separated and are looking to change your Estate Plan or obtain a Patient Advocate Designation, contact Shinners & Cook, P.C. today.