Creating an estate plan allows you to ensure that your loved ones and their inherited assets are protected when you pass away. The question many fail to ask themselves is, what happens if I pass away in the middle of a divorce? Over the past few months, two celebrities, Anthony Bourdain and Kate Spade, both died while they were separated from their spouses. While little is known about Kate Spade’s reported separation, Anthony Bourdain’s separation was documented and gave every indication that divorce was inevitable. However, since he was not legally divorced, his estranged wife remains his beneficiary. The situations serve as a forcible reminder that legal separation and estate planning sometimes go hand in hand.

Updating Beneficiaries

There are some assets that allow you to name beneficiaries independent of those listed in your last will and testament.  Life insurance policies and bank account beneficiaries are two of the most frequently used examples. The instant you and your spouse separate, it is always wise to update your named beneficiaries to your children or another trusted family member. If the marriage is salvaged, it is possible to change the beneficiary back to your spouse, but in the meantime, updating this information is one of the fastest way to ensure your most valuable liquid assets go to the person you want to receive them.

Changing the Will

Divorce and estate planning do not often seem related, but they can quickly become so if either party passes away before the divorce is finalized. A divorce usually revokes a former spouse’s entitlement to property and other assets that would typically get transferred to a widow or widower. However, a separation that is not formal does not have the same revocation. An estranged spouse who is named as the executor of an estate and sole beneficiary may retain that status if his or her spouse dies before a judge signs the divorce decree.

Legal Separation

The term legal separation is used to describe a situation that occurs when a spouse’s attorney draws up a legal agreement that fully outlines the agreement for the separation. It may include details regarding who has a right to reside in certain marital properties, outline temporary spousal support, and create a temporary custody agreement for minor children. While these separation agreements may be used to argue that a marriage was ending and any conflicting statements made in a will should be invalid, there is no guarantee that a court will decide that the legal separation renders the will invalid.

Protect Your Family from Confusion

Instead of relying on a separation agreement to protect your loved ones, talk to a trust and estate lawyer about your situation. The qualified attorneys at MMZ Law understand how stressful your separation is, so we work hard to relieve you of the burden of making excessive changes to your estate plan alone. Contact us today at 909-256-6702 to schedule a consultation at our Claremont, California office so that we can begin discussing your unique needs and answer question that you may have.




341 W. 1st St. Suite 100
Claremont, CA 91711

MARIVEL M. ZIALCITA is the founder of MMZ LAW, A Professional Corporation, where she practices in the areas of Elder Law – Medi-Cal Planning Asset Protection, Trust & Estate, Special Needs, Conservatorship, Trust Administration, & Probate. Ms. Zialcita is a frequent speaker on trust and estate matters and holds memberships in the State Bar of California, Trust and Estate Section, The San Bernardino County Bar Association, Wealth Counsel and Elder Counsel. She currently assists in the pro bono legal services program at the James L. Brulte Senior Center in Rancho Cucamonga, California. She is based in Claremont but assists clients throughout Southern California.

This information is educational information only and not legal advice.