By: Sarah Stewart Legal Group
The world was rocked this month with the news of the suicides of TV Personality and Chef, Anthony Bourdain and Fashion Designer, Kate Spade. Though the two share their tragic means of death, they also share something else.
When they died, both Bourdain and Spade were separated from their spouses. Separations don’t only lead to legal battles in divorce court, they can also cause a whole new set of problems for estate planning.
When couples choose to remain separated for a longer period of time and don’t finalize a divorce, they open their families up to complex, and often, messy legal issues if one of them dies.
Deciding on Separation Instead of Divorce
Studies show more and more families are choosing to separate permanently instead of filing for divorce. Bourdain was open about his choice to separate from, but not divorce, his wife of many years.
He stated in a People Magazine article in 2016 that his choice to separate permanently was based on his belief it led to a better co-parenting relationship of his child with his wife.
Though the concept may be nice for child-rearing, if possible, the arrangement has led to a hiccup in Bourdain’s funeral and estate planning. By law, since they are still married, his wife is his beneficiary, and the person who makes decisions regarding his funeral and what happens to his remains.
It has been reported that his body will be cremated in France and the ashes shipped to the U.S. This decision may be difficult for family members who may have more of a stake and interest in funeral decisions than a wife he hasn’t lived with for several years.
Additionally, since she is still Bourdain’s wife, she will be eligible for certain Social Security and other benefits she would not have received had the couple divorced. Benefits that may have gone to his child in other circumstances.
Kate Spade and her husband were reportedly separated when she died as well. Her family will face similar challenges to Bourdain’s.
If you choose to permanently separate instead of divorcing, there are some options to protect your estate.
(1) Healthcare Directives
If you are concerned that your spouse may be able to make healthcare decisions if you are unable to, you will want to consider putting an Advance Directive into place.
Although Oklahoma law does not provide that anyone can make those decisions without a valid Advance Directive or Court Order in place, in practice some facilities have policies that allow them to work with “closest kin.” Separated or not, if you’re married, that’s your spouse.
To protect yourself from that situation, you will want to implement a Healthcare Directive and choose a healthcare proxy to make those decisions.
Generally, couples separating are restrained from making any changes to legal documents during their proceedings. The reasoning behind this requirement is that the couple is assumed to be working toward completing the divorce and separating the assets and the Court wants to make sure nothing is moved or spent before the finalization.
If you know that you will not finalize a divorce, you should talk to your family law attorneys about provisions in your paperwork for your case to allow you and your spouse to change your estate plans.
If an estate goes through probate, your spouse can always argue for a marital share. If you do not have a plan in place, or only have a Will, your estate will go to probate. With a Trust, going to court is less likely.
Though your spouse could still sue and argue for a marital share, if you both sign off on the documents, it is far less likely your separated spouse would take from your estate and you could have more control over who gets what.
If you are in a permanent separation, be sure to reach out to your financial and estate planning professionals today!