Divorce is at an all-time high in the United States. Marriage separation is a mutual agreement by each spouse to discontinue living together. Logistically, what do these changes mean for inheritance and what should couples know about adjusting their last will and testament?
One of the most common statistics you'll hear about marriage is that ”˜50% of all marriages in the US end in divorce and separation.' When we're talking about inheritance, it can feel like a monumental life change to be separated from a spouse. What are the laws around separated but not divorced inheritance?
There's a little truth to the facts, although this has changed over the years as new family dynamics become commonplace. But, as a result of the lockdown, and the pandemic, it is now estimated that America is set to record the highest increase in the divorce rate in decades .
Take a look at these facts:
So, if you are currently in the process of legal separation, you are not alone. A lot more people are going through it with you.
You should however be smart about it. There's usually so much ugliness when it comes to divorce and protecting yourself and your property should be of utmost importance to you.
When going through a divorce the last thing on your mind is death. Most people do not stop to ask themselves ”˜what happens if I die before the divorce is final?' or ”˜what happens to my inheritance when I die?'
The mere act of separating should result in legal changes to your will, powers of attorney, estate plans, and any beneficiary designations.
Now, while a divorce changes many things in your life, separation doesn't necessarily do that. For anyone going through a separation or divorce, consulting with a lawyer could be highly beneficial, especially if you are a high-net-worth kind of person.
The biggest risk with any separation and divorce is if married spouses do not decide to change their wills after separation which effectively causes the old wills to become invalid. If you do not make changes, your spouse could end up with all of your property.
Generally speaking, marital property is anything that was acquired or earned by you and your spouse in the course of the marriage, which includes inherited property. After marriage, you may wonder, do I need a will if I'm married ? If there's no will in place, it's important to understand how assets are handled in the event of a spouse's death.
If you inherited the property before the marriage, then it is known as ”˜ separate property ,' and cannot be part of the divorce.
Now, depending on the state you live in, this may include any of the following assets, as long as they meet the rule of ”˜when acquired.'
The courts will not participate in dividing your assets and property during the separation until the later stages of the divorce.
Most couples however do not divorce immediately after separation and a common reason for this is usually arguments and blame games. Due to this, it is not uncommon to find that couples wait up to two years to divorce.
At this time, however, you are still legally married. If one of you dies without changing their will, the intestacy rules will recognize your spouse to be your primary beneficiary.
This is why you MUST prepare a will or rather update the existing one during the time of legal separation.
Divorce proceedings stop immediately if you or your husband dies while you are separated. Unless the divorce had been finalized through the courts before the death, then the process terminates.
This remains to be true, even if you had both negotiated some divorce terms, these terms are not enforceable until the judge signs off and issues a ”˜Notice of Entry of Judgement.'
Yes. Your spouse can inherit your property if one of you dies before the divorce is finalized.
In fact, the divorce proceedings stop after the death of a spouse, this means that the allocation of property, child custody (and who has legal rights to a child ), and other financial obligations are taken over by the remaining spouse. Here's what you should know:
In a legal separation, the court decides most matters such as alimony, child support, child custody, and property inheritance and division.
The couples will remain legally married and are not allowed to remarry unless they get a divorce.
The main issues that come up in the time of separation include:
The best defense mechanism during a legal separation for your inheritance would be updating your will. This doesn't necessarily have to be your final will, as you probably haven't figured out things like trusts and the kids.
If it is not your intention to leave all your inherited property to your ex, then you should specifically outline how you want it to be distributed in the will, in case of your death.
Most people think that they cannot change their wills and estate plans due to the potential of family issues during divorce, but this is not true, and they can.
At Wills.com, we help you create your legal will online. In just 15 minutes you can be able to create, and sign your own will, clearly outlining how you wish all of your property to be distributed.
You can also include information about guardianship for your children, digital and physical properties, etc.
Check out our website today for this and more.
Life is full of changes, and your will should adapt to those changes. At Wills.com, we understand the dynamic nature of life, which is why we offer free, unlimited changes to your will. Here’s a comprehensive look at the benefits of creating a will with Wills.com and how it ensures that your final wishes are honored and your loved ones are cared for.
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