Separated From A Spouse: What’s It Mean For Estate Planning?

By Joe Busnengo, Attorney At Law


When you’re newly separated from a spouse, what are the implications for any estate planning decisions you’ve made as a couple?

Let’s start with what is the single most important issue - at least in Illinois, marriage is a binary thing. You are either married or you're not. There is no in-between. Therefore, if you are separated or going through a divorce, as far as the law is concerned, you're still married.

When you pass away, your spouse has a variety of rights, unless they had waived them with a prenup or marital agreement during the marriage. Such rights include first choice on whether or not they're going to be the administrator of your estate if you don't have a will. If you do have a will, they have the right to renounce your will and take a certain fraction of your assets regardless of what it says.


The spouse you’re currently separated from is entitled to what's called a Spouse's Award, which in theory is supposed to provide nine months' worth of living expenses so that your spouse can continue to live in the style to which they are accustomed.


What Does The Separated Spouse Receive If There’s No Will?

If there's no will, the spouse will automatically get all of your assets if you have no kids. If you have kids, the spouse will receive half of your assets. There are a lot of rights that a spouse gets when you pass away.


One of the biggest things to be aware of is that until a divorce decree is signed or the spouse has signed something giving their rights up, they still have those rights. It doesn't matter if you've been separated for 30 years or if you are a day away from getting that divorce decree signed. They still have all those rights.



Healthcare Directives: Making Decisions For Those Who Can’t

It’s critical to have a healthcare directive in place for what your wishes are. If you don't have a power of attorney for healthcare, there is a state statute that governs who gets to make medical decisions for you when you can't. First on that list is your guardian if you have one (most people don’t) but after that is your spouse.


Again, in Illinois, you're married or you're not. There's no in-between, so even if your spouse is estranged, they're still going to be that next person on the list - the one who the hospital turns to for making key decisions. You can change that if you have a power of attorney for healthcare – which at Miles & Gurney, LLC, we always include with all of our estate plans – and you can designate who you want to be making decisions instead.


Obviously, make sure that you tell the people who are going to be making the decisions on your behalf know they’re in that position. You don't want them taken by surprise. At the same time, there is merit in telling other types of immediate family so they're not taken by surprise either.


The most important thing may be to ensure that the hospital, the doctor's office, any medical facility that you expect to come in contact with have your power of attorney for healthcare on file. If they have it on file, they'll know exactly who to go to when they need vital decisions made.


Essentially, by being separated, it doesn't mean your spousal rights are extinguished. It means life can go on for both parties. If you have questions about how to specifically deal with estate planning issues in the midst of a separation, let our estate planning attorneys at Miles & Gurney, LLC help shed light on how to best move forward. To arrange an initial consultation with us, call 312.929.0974.

Joe Busnengo practices in the areas of probate, family law, and estate planning. While a student at Northwestern University School of Law, he gained experience with family law as an extern at Chicago Volunteer Legal Services and with probate and estate planning as a clerk at Prather Ebner LLP. Since graduating and being admitted to the bar in 2013, he has represented clients in adoption, divorce, and estate planning matters through Chicago Volunteer Legal Services and Wills for Heroes. He is currently a member of the Chicago and Illinois State Bar Associations and serves as co-chair of the CBA YLS Public Outreach—Wills for Heroes subcommittee. 

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