Legal Separation & Estate Planning
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Legal Separation & Estate Planning

It is commonly understood that when couples get divorced, they are most likely changing their estate plan to reflect the divorce, in addition to accommodating new spouses or children. Regardless, in Arizona, spouses have the choice of a legal separation, in which retain some inheritance rights for the living spouse, in addition to any fiduciary obligations.

Legally separated partners are deemed to be still married but living their lives apart from each other. There could be several reasons to do this like children or business ventures, and it will impact the estate plan and inheritance rights.

(Remember; just moving out of the marital home is not going to always equal a legal separation for estate planning grounds. It is wise to have a separation agreement composed to verify your intent to separate.)

The following are some examples in which legally separate spouses and non-legally separated spouses might be differently treated:

  • A legally separated spouse can’t inherit from their spouse through intestate succession. In this case a “surviving spouse” doesn’t comprise of a legally separated spouse.
  • Specific rights provided to a spouse after the passing away of the other like brief use of a family home, establishing of a probate homestead, and benefits aren’t available for legally separated spouses.

Property Rights

When the separation agreement among the spouses ceased property rights, then a spouse can’t inherit using intestacy (having no trust or will). Nevertheless, when the spouse is designated as a shared owner or beneficiary of an account or life insurance policy, they are still able to inherit assets in the account.

Beneficiary Rights

A separated surviving spouse is going to still retain their right to inherit when they are designated as a beneficiary in a will or trust. Consequently, when it is pivotal for your spouse to inherit assets, a will or trust needs to be composed with particular gifts to that spouse. Nevertheless, a divorced spouse designated as beneficiary in a trust or will written prior to the divorce typically will not be a legitimate beneficiary.

Fiduciary Roles

Likewise, when a spouse is designated as the trustee, executor, or power of attorney, they are able to still fulfill that role. Since legal separations stops the spouses from getting remarried, they could still be the leading and most trusted party to take on the role. This is entirely different from divorce, whereas those fiduciary appointments are automatically abolished.

Estate Planning for Separated Couples

Because of these factors, it is important for spouses that are separating to reexamine their estate plan and assets, to guarantee that their intentions are conducted. when they stay supportive of one another and are on friendly terms, they might want to maintain asset allocation to their spouse, in which still looking after other heirs.

In any event, when you are thinking about a legal separation you need to speak with an estate planning attorney to guarantee that your assets and roles are properly structured.

Whereas it might be difficult to imagine managing estate planning at the same time you’re experiencing the challenging emotional process of a legal separation, you might be surprised to discover how freeing it can feel. There could be an inclination in putting off planning until you get “back on your feet” and your legal separation is in the past, doing so can have unintended negative results in which might be easily avoided with suitable planning.


Arizona Family Law

Naming guardians in your will can be part of your estate plan. You may think you’re too young or don’t have enough money to justify the expense, but if you have children, you have priceless assets. There are many considerations when naming guardians for your kids. However, the process doesn’t have to be expensive or complicated.

There’s nothing better than the peace of mind you will have knowing you’ve protected your family at a time when they need it most. Let us help. Schedule a consultation or contact Ogborne Law, PLC of Arizona today.

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