Will my spouse inherit part of my Estate if we are separated, but not divorced?
Being separated from your spouse means that you are living apart but still legally married until you obtain a judgment of divorce from the court. However, a separation still has an impact on the financial responsibilities between you and your spouse before a legal divorce is finalized. There are also three different kinds of separation that all have the potential to affect your legal rights: trial separation, permanent separation and legal separation.
A trial separation is a process whereby you may choose to live apart from your spouse while deciding if you will proceed with divorce or reconciliate. During this time, the same legal regulations apply as when you are married, for example, regarding property ownership, depending on your state rules.
When you are in a trial separation, it is a good suggestion to create an informal agreement about issues that could come up, such as whether you will still share a joint account or bank cards during this time; who will stay in your family home and how each of you will share the responsibility of children if you have them. If at the end of it, you decide to turn the trial separation into a permanent separation, this may make deciding things easier.
Permanent separations means living separately to your spouse with no intent to reconcile. However, you are considered permanently separated and not divorced. In some states in the US, not living together can change your property rights. Once you and your spouse are permanently separated, you will no longer be responsible for any debt incurred by your partner. You also no longer have rights to any portion of income earned by your spouse. Some people stay married but permanently separated because of insurance issues.
A legal separation can be obtained by submitting a request to family court. It is a different legal status than being married or divorced, however, you cannot remarry during this period. There are a variety of people who choose to be legally separated instead of divorced, including religious beliefs, an attempt to keep the family together, children in the picture or insurance benefits that would be lost in the case of a divorce. Some live happily while legally separated for years.
If you are still married according to state laws and haven’t created a will document yet, your spouse will inherit part of your estate in the event of your death. However, there are exceptions if, for example, if you signed a separation agreement stating otherwise.
Do I have to include my spouse or children in my Will?
Laws for the most part are designed to protect surviving spouses - the rationale is that otherwise many would be left with no inheritance.
In community property states, your spouse will automatically inherit half of your assets you made or acquired during your marriage. The following are community property states:
In the above states, you have the right to leave your half of the community property, and your separate property, to anyone else you decide.
In every other state in America, the surviving spouse has a a legal right to claim a portion of your estate, regardless of what is included in your will. But these provisions only take place if your spouse makes a court claim for their share.
Should you decide that you do not want your spouse to inherit at least half of your property, then you should speak to a lawyer. However, should your spouse agree to this in writing, a lawyer may not be necessary.
In strictly legal terms, you are permitted to disinherit a child. However, the law can be murky in this area. For example, a child may claim that you disinherited them without knowing it. Example cases would be children who were born after their parent made the will.