Estate Planning When You Are Separated

Today’s modern family can be complex. In fact, today, many spouses have chosen to remain permanently separated without going through the process of divorce. While this arrangement may work in the short-term, such an arrangement has serious unforeseen consequences after a spouse has passed away. Long-term separations like this can raise complex inheritance issues, as spouses are given certain rights during the marriage that do not terminate until a final decree of divorce is entered by a court. We have seen this with the recent deaths of Kate Spade and Anthony Bourdain, both of whom have estranged spouses who are entitled spousal rights arising out of the deaths of their estranged spouses.

When a married couple separates, their spouse is still considered their heir entitling them to a wide range of benefits including social security benefits and inheritance rights in probate court. To avoid an estranged spouse from receiving inherited assets, a separated spouse should finalize their divorce or prepare an estate plan clearly outlining how they want their assets distributed. As a second precaution, a separated spouse may want to appoint someone other than their estranged spouse to make medical and financial decisions for them. A Patient Advocate Designation allows an individual to appoint another individual to make decisions regarding their health care, both physical care and mental care. Further, a Financial Power of Attorney can be appointed to control a person’s financial affairs if they become incapacitated or deceased.

If you are currently separated from your spouse but not divorced, it is important to have a discussion with your estranged spouse about the spousal rights that exist. It is better to have that conversation today than to have no control over what happens to your assets after you pass away.

On the other side, if you are an estranged spouse, it is also important to maintain documentation of your marriage during the time of separation to ensure a proper death certificate is filed upon your spouse’s death, assuming they pass before a divorce is finalized. 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, and the burden is on you to prove a corrected death certificate is needed.

If you have recently separated and are looking to create or change your Estate Plan, or if you are dealing with the passing of your estranged spouse, contact Shinners & Cook, P.C. today for assistance navigating the next steps.


5195 Hampton
Place Saginaw, MI 48604

Shinner & Cook

Shinner & Cook