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Estate Plan: Can Your Spouse Inherit if You’re Legally Separated?

An estate plan is a great tool: it ensures that your assets are distributed to the exact people you want to have them. What happens if you’re legally separated, and planning on getting divorced? If you die before the divorce is finalized, will your ex still inherit everything they would have otherwise?

Generally speaking, once you are divorced, Ohio courts will presume that you did not intend for your ex-spouse to inherit—unless you explicitly state that their inheritance, powers of attorney or trusts are supposed to survive the divorce. While it’s a relatively rare choice, there could be cases where spouses are amicably splitting, and the decedent may want to provide for their ex even after passing.

Here’s how it works.

When You Die Without an Estate Plan

If you die without a will, you’re considered to have died “intestate.” Your property and assets will be distributed according to the state’s “intestacy” laws.

When you’re still married at the time of death, your surviving spouse inherits all of your intestate property. However, if you die with no spouse, your property will go to your living children. Should you die with no spouse, and you have no direct descendants such as children or grandchildren, the probate court will distribute your property to other kin: parents, grandparents, aunts or uncles, and so on.

Should you have no living relatives whatsoever, your property could default to the state.

When You Die with an Estate Plan

As mentioned earlier, in Ohio unless you specifically provide that your ex’s inheritance, power of attorney or beneficiary/trustee status in a living trust remains valid, courts will consider those portions revoked. This can get complicated when you have multiple beneficiaries or trustees, so it’s always smart to work with an attorney.

Keep in mind that many assets don’t pass through probate, like life insurance, survivorship deeds, joint bank accounts and “transfer on death” property. In these cases, Ohio courts may treat those issues differently. Be sure to ask your attorney how separation and divorce will affect your entire estate plan—not just your will.

When you need thoughtful estate planning assistance, call the attorneys at Dworken & Bernstein today.

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