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Dying While Separated… When Your Estranged Spouse Controls Your Funeral

By Bonie Montalvo

Dying While SeparatedDivorce is not easy, and many couples who start the separation process never legally separate and obtain a divorce. Couples who are legally married, but apart, forgo divorce due to a myriad of reasons, ranging from wanting to protect their children and avoiding ugly divorce battles, to evading the emotional, mental, and financial strain associated with divorce.

While a couple’s separation may be widely known in the community, while they may be living in different houses, and while they may portray themselves as single, the law does not take into account any of these manifestations. For the law, only records matter, and as such, it will only take into account an individual’s legal marital status.

The law grants a spouse much power over the affairs of the other. At death, a surviving spouse has the power to control funeral arrangements and the disposition of the deceased spouse’s body. Aside from having control over the deceased spouse’s remains, the surviving spouse has control over the deceased spouse’s assets. In many cases, the surviving spouse receives the majority (if not all) of the deceased spouse’s estate. While some couples have a cordial relationship after separation, others depart in extremely acrimonious terms. To leave a vengeful surviving spouse with the power to control the deceased spouse’s remains and assets, often spells disaster, and creates unnecessary pain for the deceased spouse’s surviving family.

Couples who are separated, but not legally divorced, should at minimum, take the following steps:
1. Advanced Directive. This document gives you the opportunity to designate a health care surrogate, the person who will be able to make health care decisions on your behalf if you are unable to do so. You do not want your estranged spouse pulling the plug.

2. Power of Attorney. This document serves to nominate a person who will take care of your finances in the event that you are incapacitated. You do not want your estranged spouse to go on a shopping spree while you are in a coma.

3. Alter What Can be Altered. While in most states you will not be able to alter the beneficiary designations for your retirement account or pension plan, make sure you make the effort to alter what you can. Take the time to call your plan custodian and make changes to any accounts that can be updated.

4. Update Your Will. If you have a will, chances are that your spouse is named as your executor, and as such, will be the one administering your assets. To make matters worse, your will could name your estranged spouse as the sole beneficiary of your estate. Unless proper nuptial agreements are in place, Florida prevents you from completely disinheriting your spouse. Under Florida law, your spouse is entitled to thirty-percent (30%) of your estate. Some spouses update their wills to leave their spouse with what they are entitled under the law. Others cut their spouse out of their will entirely, forcing the surviving spouse to petition the court to receive their spousal share.

If you don’t have a will, Florida law will award your entire estate to your surviving spouse. If you or your spouse have children from prior relationships, Florida law will award your surviving spouse half of your estate. With the proper documents in place, you can prevent your spouse from receiving all of your estate.

5. Update Your Estate Plan After Divorce is Finalized. Estate planning during divorce is often a temporary measure. Once the divorce is finalized, review your beneficiary designations and revisit your estate plan and see what needs to be updated.

For those with an existing estate plan, review your plan and update documents accordingly. For those who do not have an estate plan, start your estate plan now. Time is not fair, nor is it convenient, do not wait until the divorce is over to take action.

This Article does not constitute legal advice and may not be relied upon as such. Each individual’s facts and circumstances are different. If you have any questions regarding your particular situation, please consult with legal counsel.

Bonie Montalvo practices in the areas of estate planning, business succession planning, tax planning, and not-for-profit law. Ms. Montalvo has her LL.M. in Taxation from the University of Florida and is fluent in Spanish.



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