When my husband I decided to start a business, we didn't think about the legal aspects of doing so. We didn't realize that purchasing business insurance, getting building permits and making investments all required some type of legal advice. But after speaking to a close friend, who also happens to own a small business, we contacted a business attorney. Now, we have the legal smarts to make the best decisions for our business, as well as the legal representation in case something happens to our company. I hope that you find my blog helpful and informative for your own business. It's a great resource for finding the legal advice, resources and guidance you need to get your company up and running.
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Death During Divorce: 5 Ways Legal Separation Can Affect A Deceased Spouse's Estate
Ronnie Mills
You and your spouse may decide to get legally separated as opposed to divorced for many reasons, including social, religious, and financial reasons. In some states, a legal separation is required before a divorce will be granted and in other states, separations are not legally recognized. During a legal separation, you will have a court settlement, similar to the one you would get after a divorce. This will lay out the rules regarding support, debts, and custody that you and your spouse must abide by. However, if your souse dies while you are legally separated, you may wonder how this status will affect the division of their estate and any support you may be receiving.
Division of an Estate Without a Will
If the deceased has not created a will at the time of their death, then the estate will generally be divided as if the couple were still married. This is because during a legal separation, the couple is still considered legally married. However, if a divorce has been filed but not finalized, this may affect how the assets without a beneficiary designation are divided by the courts. You will need to consult your state's intestate succession laws to understand what a spouse has rights to if their husband or wife dies without a will.
Division of an Estate with a Will
If a spouse you were legally separated from creates a will before they die, the will is generally followed in court. This may mean that you receive little or none of their estate if they left it to someone else. However, you may be able to file a right of election, which may allow a judge to override certain aspects of the will and ensure that you are given a fair division of your spouse's assets.
Extended Child Support Obligations After Death
Child support obligations end when your spouse dies. However, your child should be entitled to a portion of your spouse's estate. If they are written out of the will, they may also have standing to contest the will. For example, if your support agreement stated that your spouse would pay the tuition for higher education, your child may be able to claim that amount from their estate even if it is not specifically stated in the will.
Also, if your deceased spouse owes back child support, you may be able to file to receive that support from their estate before it is divided according to the will.
Government Benefits Such as Social Security or Military Benefits
Many couples elect to remain legally separated for a few years before filing for divorce in order to make a dependent spouse eligible for government and military benefits that require them to be married for a certain length of time. Since you are still legally married when you are legally separated, you will likely still be eligible to receive any social security or military benefits that you would receive if you were not separated. However, if you have given up your rights to these benefits as part of your separation agreement, it should be stated in the original agreement that, upon death, these benefits will be transferred to you.
Status as Divorced or Widowed
If you are legally separated when your spouse dies, you are legally considered a widow, even if you have been separated for several years. If you are divorced when your ex-spouse dies, you will be considered divorced, not widowed.
While these are some general things that may happen if you are legally separated when your spouse dies, it is important to note that you laws vary from state to state. It is important to discuss your particular case with an experienced divorce attorney in your area. Click here for more information.
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