What kind of funeral do you think your almost ex-spouse will plan on your demise? Avoiding that scenario is easy to fix, even if you intend to stay permanently separated: update your estate plan.
The unsettling week that brought news of two very accomplished people who took their own lives also put a spotlight on their marital status. Kate Spade and Anthony Bourdain were not divorced from their spouses, so their “not-quite ex’s” will be in charge of everything, unless their estate plans were updated to reflect other wishes.
Forbes’s recent article, “Kate Spade, Anthony Bourdain And Estate Planning When You Are Separated,” explains that when spouses decide to divorce, it’s usually a legal process. However, it’s becoming more common for spouses to remain permanently separated but not divorced. This is a gray area for both family law and estate law, where many don’t realize the legal implications.
Although the details of Kate Spade’s separation aren’t known, Bourdain’s separation from his second wife are, and his situation is a common one. He and his estranged spouse were together for years, but their work and other commitments caused them to move in separate directions. They had one child, whom they wanted to co-parent together.
However, with his untimely death, it brings up an odd result: his estranged spouse is his beneficiary. She will also be the owner of his legacy. In terms of immediate issues, she controls his remains and his funeral. Bourdain’s mother told the media that she was unsure of funeral plans with his estranged spouse still legally his next of kin. She said, “Although they are separated, she’ll be in charge of whatever happens.”
While this might be okay for the Bourdain family, in the event you consider a permanent separation, it may be wise to consider the pros and cons of an estranged spouse’s rights. When you get married, spouses are given rights previously unavailable to them in their single status with their partner. Separation doesn’t mean your spousal rights are immediately wiped out. Only a final divorce decree can fully terminate spousal rights. If there’s a death prior to a divorce, in most situations the surviving spouse will have legal control.
Even if the separation is amicable, there are a few things to consider. Make sure someone other than your estranged spouse is able to plan your funeral. To do that, you need to have a new Health Care Directive put in place. That’s a legal document, in which a person specifies what actions should be taken for their health, if they’re unable to make those decisions. It also address the disposition of the body in the event of death. Make sure that your funeral plans are included in your health care directive. In contrast to changing beneficiary designations or your estate plan in a divorce proceeding, you can make a new directive, and you aren’t required to name your spouse.
A final piece when the estate plan is updated: make sure to tell the people who will be involved: adult children and any others who will be in charge of you and/or your estate. Make sure that your estate planning attorney and your matrimonial attorney are in touch so that all bases have been covered.
Reference: Forbes (June 12, 2018) “Kate Spade, Anthony Bourdain And Estate Planning When You Are Separated”