Today across the news you will see ongoing reporting about celebrity couples who are dealing with challenges since tragedy has struck. Deaths, incapacity, and even cases of elder exploitation are on the rise. These hard cases are made more complicated when the celebrity is separated, but not divorced, from his or her spouse. In cases of separation, such as in the recent deaths of Kate Spade and Anthony Bourdain, divorce was never finalized and it could cause complications for the family.

This issue extends beyond celebrities and impacts each of us. Does your marital status of separated but not divorced have the potential to cause more conflict when it comes to your estate planning? The answer is a resounding yes.

When a couple is separated, legal authority can still exist between both spouses to act for one another. For couples who are separated, it is critical that there is an estate plan that not only memorializes the separation but plans around it. Without this type of estate planning in light of separation, spouses can stand to inherit much from their separated partner at death. Further, in the event of incapacity, without careful planning the separated spouse may be in a position to make decisions for their former partner.

Let us share three key ways we have seen spouses who are separated still be able to influence each other’s estate planning. You can use these examples to guide you through the planning you need should you be separated from your spouse right now but are not divorced.

1. Your actual beneficiary. Clients we talk about this very issue with are surprised to learn that when they are separated from their spouse, but not legally divorced, their soon-to-be former spouse still has the potential to be treated as a beneficiary. We share with them that this happens for two reasons. First, as the named beneficiary on policies. We find that without a legal divorce proceeding and your divorce attorney, or the court, reminding you to separate your assets, you may not take the time to remove your spouse as a beneficiary of plans such as retirement or life insurance. Second, all spouses are entitled to some form of compensation at the first spouse’s death. This is referred to as the elective estate and the legal intent is to ensure that your spouse will not be left destitute in the event of your death. When you are separated but not legally divorced, your spouse may still be entitled to the elective state without estate planning that contemplates a different scenario.

2. Your primary decision maker. In a crisis, it is likely that you will not want your separated spouse to make decisions for you. You will want someone who was involved in your life and has your best interest at heart to be making critical decisions during a crisis. While some separated spouses maintain a healthy relationship, you need to think about who you want to act for you if you were in a car accident and could not make decisions for yourself. Who should be in the hospital making decisions for you? Who should be paying your mortgage? Who should be caring for your children? If the answer is not your current spouse, then you want to make sure your estate planning does not default to your spouse.

3. Absence and Potential Harm. Although you may endeavor to leave the marriage on good terms and choose to leave your estate planning the same, you need to be very cautious. As separated spouses drift apart they may be less available to help the other in times of crisis. You need to protect yourself and ensure that your decision maker will be available. Further, you need to objectively consider if you have a good relationship with your separated spouse. While the details of your separation are known only to you and your spouse, you need to make sure he or she will act in your best interest in a crisis and not inadvertently harm you.

Even if you are currently going through the divorce process, do not wait to use estate planning tools for your benefit. Remember, divorce proceedings are not divorce and your soon to be former spouse can be called up to act for you even while a divorce proceeding is moving forward. Do not hesitate to contact us to ask us with your questions on this or any other estate planning question.