Two recent celebrity deaths highlight a potential issue in estate planning. What happens when a couple does not get divorced but separates amicably?
At the time of their passing, they were both separated from their spouses. That highlights a peculiar issue in estate law as Forbes discusses in "Kate Spade, Anthony Bourdain And Estate Planning When You Are Separated."
If Spade and Bourdain had gotten divorces, then their spouses would not be entitled to any portion of their estates. If the spouses were included in the estate plan, they would be constructively written out by a court. However, that does not happen when a couple is separated.
The spouse of the deceased retains full rights to the estate. That means if there is no estate plan, the spouse will normally receive the entire estate through the laws of intestate succession. If there is an estate plan, then the spouse receives anything the plan says he or she gets. If the spouse does not receive enough of the total assets of the estate, then the spouse can elect to take his or her spousal elective share (the amount of which varies between states).
Of course, both Spade and Bourdain might have been perfectly fine with their spouses receiving their assets. They did after all choose not to divorce, but instead to separate.
Reference: Forbes (June 12, 2018) "Kate Spade, Anthony Bourdain And Estate Planning When You Are Separated."
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