Separated But Not Divorced Inheritance

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| 4 min. read |

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:

  • Currently, the divorce rate for every 1000 women is around 16.9% and most experts feel that this is the truest representation of the situation.

  • It is estimated that 41% of all first marriages will end in divorce.

  • It is estimated that 60% of all second marriages will end in divorce, and

  • The biggest of all: 73% of all third marriages will end in divorce

  • The US is currently 6th in highest cases of divorces in the world

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 does marital property become inheritance

Separation and Inheritance: Everything You Need To Know

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.

When Does An Inheritance Become Marital 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 primary home, real estate properties, and any other homes you may have together such as vacation homes.

  • Stocks, bonds, and bank accounts.

  • Profit-sharing plans, pensions, retirement benefits, and stock options.

  • Household items such as jewelry, art, clothing, and furniture.

  • Vehicles, including watercraft and aircraft.

  • Life insurance policies

  • Any lottery winnings 

Warning For Couples Split But Not Divorced

The Law:

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.

separated but not divorced inheritance

My Husband Died While We Were Separated

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.'

How Does Death Affect Divorce Terms? Can A Spouse Inherit If You're Separated?

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:

  • If you die before the allocation of property, your spouse will automatically assume ownership, even if it was from an inheritance.

  • Your spouse will also become responsible for all marital debts you may have acquired during the marriage.

  • As the only surviving parent for your children, they will assume sole legal custody of the kids. However, for example in California, grandparents have a right to petition the courts for the visitation of the kids.

What Rights Does A Legally Separated Spouse Have?

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:

  • Whether one of the spouses is entitled to receive alimony

  • How much the child support payments will be, in the case of minor children.

  • The rights of the family home and what spouse will remain in the matrimonial home during the separation and who will be responsible for paying the mortgage.

  • The main debts that each spouse will be paying. 

separated but not divorced last will and testament

What Should You Do To Protect Yourself During A Legal Separation?

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. 

How Can Help?

At, 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.

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