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Can My Spouse Still Inherit if We are Legally Separated?

If you die without a will, California’s intestacy law dictates how your estate must be distributed. For example, if you are married at the time of your death, your spouse is entitled to a certain share of your property under intestacy. But if you are legally separated when you die, then your spouse does not inherit.

Living Apart Does Not Necessarily Prove the Marriage is Over

What does “legally separated” actually mean? Is it enough if you and your spouse are living in different homes? A California appeals court recently addressed this question in the context of a tragic case from Los Angeles.

In 2013, a 23-year-old man–the decedent in this case–shot and killed his father and brother at his home in Santa Monica. The decedent, who reportedly suffered from a mental illness, then burned the house to the ground. Later that day, he was shot and killed by police at a nearby college.

The decedent had no will. At the time of his death, he had a wife, who petitioned the probate court for appointment as administrator of his estate. The decedent’s sister also sought appointment. The court ended up naming the two women as co-administrators.

The wife and sister soon disagreed over who should legally inherit the estate, which included more than $280,000 in insurance proceeds from the fire that the decedent started on the day of his death. The sister claimed the decedent and his wife were legally separated, as they had been living in separate residences for some time. If that was the case, then the sister would be entitled to a share of the intestate estate.

The insurance company asked the probate court to settle the matter. The court said that even though the decedent and his wife were living in separate homes when he died, they were not “legally separated” under California law. The sister appealed, but the California Second District Court of Appeals affirmed the probate court in an unpublished May 9 order.

As the appeals court explained, a legal separation requires proof that “at least one spouse has a subjective intent to end the marriage and there is objective evidence of conduct furthering that intent.” The mere fact that spouses are “living in separate residences” does not, in and of itself, demonstrate the necessary “subjective intent to end the marital relationship.” Indeed, spouses may spend significant amounts of time apart “followed by long periods of reconciliation.” Unless one spouse unambiguously declares there is a “complete breakup of the marriage,” the Second District said the courts should not infer a legal separation.

In this situation, despite the couple’s living arrangements, which was partially dictated by their need to keep their two children apart, the evidence suggested the decedent and his wife “continued to maintain an intimate spousal relationship” up until his death. Even if the decedent’s family thought he was separated, that had no bearing on the spouse’s right to inherit.

Need Help Making (or Revising) Your Will?

If you have separated from your spouse, it is a good idea to review and if necessary update your estate plan to reflect your current wishes. Remember, intestacy is a set of legal defaults that only apply when you fail to take matters into your own hands. If you need to speak with a qualified San Diego estate planning attorney about making or amending a will, call the Law Office of Scott C. Soady today.

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