A primary goal of many estate plans is to provide for a surviving spouse when the other spouse dies. However, circumstances and relationships can change. When divorce comes into the picture, it’s wise to consult an experienced estate planning attorney to avoid unintended outcomes or disputes. 

A marriage is considered legally intact until 1) a judge executes a final divorce decree, or 2) when the passing of one spouse leaves the other party as the surviving spouse (hence the reference in many wedding ceremonies about the marriage lasting “until death does you part”). If a spouse dies in the middle of divorce proceedings, the parties are still considered legally married because death has terminated the marriage, not a final divorce decree.  

For this reason, a divorcing couple should be aware that, regardless of the length of separation, the extenuating circumstances, or the reasons that the marriage is ending, a surviving spouse may lay claim to the other spouse’s assets if one of them dies before the divorce is final.  

What Happens When a Separated Spouse or Estranged Spouse Dies? 

When a decedent has estate planning documents in place, assets normally pass according to the terms of the decedent’s Will, Trust, or beneficiary designations. For example, assets and accounts on which the spouse was listed as a direct beneficiary – such as life insurance or financial accounts – will pass outright to the surviving spouse, even if the couple is estranged. 

If a Will or Trust has not been created, the intestacy laws of the state where the deceased spouse primarily lived will prevail regarding how assets pass to the surviving spouse. In an intestate estate in Georgia, the surviving spouse is entitled to a minimum of 1/3 of the probate estate, with the decedent’s children, if any splitting the other 2/3. If the intestate decedent has only one child, then the surviving spouse is entitled to ½ of the probate estate, and if the intestate decedent has no children, then the surviving spouse is entitled to all of the estate. 

In addition to being recognized as an heir or a beneficiary, a surviving estranged spouse of a Georgia decedent may make a year’s support claim, which awards assets from the probate estate to the spouse. The year’s support claim (which is also available to minor children but not to children 18 or older) is available without regard to whether the decedent has a Will. While the theory is that the year’s support claim is to give the surviving spouse enough assets to support them for up to one year after the decedent’s death, because of the manner in which Georgia law is written, a year’s support claim may allow a surviving spouse to take all of the probate estate assets. 

Most states other than Georgia do not have a year’s support provision. However, many other states provide that children and spouses (including separated spouses) are entitled to a specific minimum share of the estate, also known as forced or elective shares. “Forced” means that estate planning may not fully be able to eliminate that right, and “elective” means that the spouse or child holding the right can elect to take it regardless of the provisions made or not made for that person in the estate plan. While a year’s support and forced shares are entitlements under state law, in many cases it is possible to structure an estate plan in a way that limits or eliminates the potential that these rights will be exercised. 

Divorce and Estate Planning 

If you are entering divorce proceedings, it’s important to get the advice of an experienced estate planning attorney immediately. There are options that can be considered, including: 

• Updating the terms of a Will. 
• Removing the separated spouse as a beneficiary on accounts. 
• Considering creating a Trust that will control what happens to money and property at death and that will provide for your children instead of a surviving spouse. 
• Finalizing the divorce as soon as possible, especially if there are health concerns.  

In some states, estate plans and other legal documents cannot be changed during divorce proceedings. This may mean that it is too late to make estate-planning-related changes to your assets once a divorce action has been filed. However, individuals can still update legal documents such as a Power of Attorney and Advance Directive for Healthcare so that the estranged spouse will no longer have decision-making authority over the other spouse. You may also still be able to update an existing Will or Revocable Living Trust in order to remove the spouse as a beneficiary. Persons involved in divorce proceedings should consult both their family law attorney and their estate planning attorney to determine what steps they can take and what steps they cannot take. 

After a divorce is finalized, the former spouse is normally treated under Georgia law as if they died before the decedent for purposes of applying the decedent’s Will, and the former spouse will no longer be a potential heir. However, , if the former spouse is designated as a beneficiary under a trust, whether the trust is revocable or (NOTE: please take out “may be” and “trusts” and just leave “irrevocable” as the link – it won’t let me take out just the may be) may be irrevocable trusts, then the former spouse may still be a beneficiary (that depends on the terms of the trust and on state law). Similarly, in many states, including Georgia, a beneficiary designation that names the former spouse will still benefit that former spouse after a divorce unless and until the beneficiary designation is changed.  For this reason, it is critical for a recently divorced person to do a comprehensive review of that person’s estate planning, including but not limited to, any beneficiary designations as well as a Will, any trusts, and any powers of attorney or health care directives, and ensure that all desired changes have been made.  

The experienced Metro Atlanta attorneys at Morgan & DiSalvo stand ready to help you navigate the divorce process and how it affects your Will, Trust, and other estate planning instruments. We recommend calling us at (678) 720-0750 or e-mailing us at info@morgandisalvo.com to schedule a consultation as soon as possible. We can discuss a strategy for protecting your interests and those of your loved ones.