What You Need to Know about Probate and Legal Separation

Probate cases involving married couples tend to be relatively simple. In many cases, executor duties and jointly held assets pass automatically to the surviving spouse in the event of a death if one spouse dies without leaving a last will and testament. Of course, this is not the case when the parties involved are divorced, but what about the somewhat gray area of legal separation? Here is what you should know going forward if you or someone you know are legally separated from a spouse.

Divorce vs. Separation

If a person who dies creates a valid will, the terms outlined in the will determine who receives the decedent’s net estate. It is important to note that being legally separated does not change this outcome, even if the couple no longer lives together. However, if the couple is divorced, then the parts of the will that favor of the former spouse are revoked, but the rest of the will remains valid. Functionally, the effect is the same as if the former spouse had died before the decedent. A probate attorney can help you with any questions you might have about how legal separation affects the estate planning process.

When one person in a legally separated married couple passes away, the surviving spouse loses the right to make what is known as a spousal elective share claim against the deceased spouse’s estate. This claim’s value is based on the length of the marriage, under the provisions of the deceased spouse’s will, by right of survivorship, or by beneficiary designation. This claim is only important if the person surviving did not receive the spousal elective share amount from the estate.

As you may have guessed, it is usually not the best idea to rely solely on state laws of intestacy to determine who receives your assets. Creating a valid will with the help of a New York estate planning lawyer allows you to be in control, make your wishes known regarding the distribution of your assets and holdings, and be absolutely sure of the outcome after you are gone.

Which assets go through probate?

A will, or the laws of intestacy for those who do not leave behind a valid will, only governs assets that pass through probate. A probate asset is an asset in an individual’s name alone without a right of survivorship or beneficiary designation. Some examples of this type of asset would be real estate or automobiles held in the decedent’s name alone, or property owned as a “tenant in common” with others.

Assets that do not typically need to be probated include: property held in a living trust, jointly held property, retirement accounts with a named beneficiary, co-owned U.S. savings bonds, life insurance proceeds, and real estate subject to a transfer-on-death deed, although this varies by state.

For help creating a will that will leave your loved ones securely cared for, contact Queens probate lawyer Richard Cary Spivack, and face the future with confidence.