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Separated Spouses: What Happens After a Death?

When a couple is separated but not divorced it can cause issues if one spouse dies. Here’s what to consider if you have an estranged spouse.
What Happens If an Estranged Spouse Dies?
What Happens If an Estranged Spouse Dies?

Today it’s not uncommon for married couples to separate for a period before getting divorced. Some couples remain in that status for years. While both spouses can completely acknowledge that they are no longer a couple, that’s not how it’s seen in the eyes of the law. 

One of the biggest issues occurs when one of the separated spouses dies. Here’s what can happen if a couple is separated and one of the two passes away unexpectedly. 

You’re Still Considered Legally Married Even If You’re Separated

Many separations are informal. In other words, on paper you’re still married, and that has legal implications. If one of the separated spouses dies the other person is considered the surviving spouse. It’s a designation that could have a big impact on what happens in the days and weeks following the death.

However, you may be considered legally separated, which would change the legal status. It depends on the state’s laws, but a couple could be considered legally separated if:

  • There was a legal separation agreement
  • The spouses lived apart for a certain amount of time
  • There was any arbitration or mediation settling affairs related to the separation

Because there is so much gray area, all couples are encouraged to seek legal counsel when they decide to separate. It’s also a good idea to discuss the situation with a financial advisor if you have one. 

Separated Spouse Could Get Most of the Estate

It’s really important to have a last will and testament so that there’s no question about what you want to happen with your estate. If you don’t create a will, state law will determine that. Here’s what estranged spouses need to keep in mind about that. In many states, the estate (or at least a good part of it) goes to the surviving spouse. 

In community property states like Texas all of the property acquired during the marriage will typically go to the surviving spouse. This is the case even if property is acquired by the deceased after the couple separates. The surviving spouse may also get half or more of the deceased’s property that was acquired before the marriage. 

Remember, legally you are still married so everything that becomes one person’s property is essentially the property of both people. 

Separated Spouse May Be Responsible for Making Funeral Arrangements

Funeral arrangements could also be impacted if a couple separates without divorcing. In addition to inheriting most or all of the estate, the surviving spouse is typically responsible for making funeral arrangements if there isn’t a will or the will doesn’t name an executor to take on the task. 

This isn’t a big problem unless one spouse wants a different type of disposition that the deceased didn’t agree with. 

If a couple decides to separate it may not be simpler than getting a divorce. As a safeguard it’s best to update wills and insurance policies as soon as the relationship dissolves so there are fewer legal hassles if a death should occur. That way even if you don’t formally get divorced your estranged spouse won’t take control of the estate or the funeral arrangements if you don’t want them to be. 

At we’ll work one-on-one with the individual who is responsible for arranging the cremation. We take the work and stress off your hands by guiding you through the cremation process. Call or text us whenever is most convenient for you.