Legal Effects of Estrangement In Estate Planning

While TV dramas tell stories of sweet reunions with an estranged loved one, the reality is not so optimistic. What does estrangement mean?

What is estrangement?

Estrangement refers to a breakdown in a relationship, such as a relationship with a spouse or family member, where there is no longer any communication, or communication has become hostile, and the individuals lead separate lives. Although estrangement can significantly impact individuals’ personal lives, it is not a legal term and, in many cases, might not have a legal effect.

Estranged Family Members

Suppose a man is estranged from his son. They occasionally speak on the phone, but the conversation always ends in a fight. They no longer get together for holidays and do not feel close. However, if the father does not have a Will, the son still has the legal right to inherit under his state’s intestacy law. For the father to disinherit his son, he must make a Will.

If the parent does not want the estranged child to receive anything from their estate when their gone, Estate Planning lawyers recommend explicitly disinheriting an estranged family member or may suggest other strategies of dealing with an estranged child. In many cases, mere bad feelings and lack of contact likely are not sufficient to remove legal rights.

Estranged Spouses

Estranged spouses entail more complex considerations. Imagine a couple gets married, but after a few months are not getting along. Rather than getting divorced, one spouse moves away and stops contact. The spouses are estranged.

Estranged couples are still legally married. Although the romantic relationship may have ended, they remain married under the law, thus may retain their rights under the marriage, such as inheriting from their spouse, making health care decisions for their spouse as next-of-kin, and having rights to marital assets.

Two people could be estranged for decades – as in, they might live separately and have limited to no communication – but without a divorce or going through the process of dissolving a marriage, they will nevertheless be officially married.

Estranged spouses will need to get a divorce in order to:

  1. Remarry
  2. Divide marital assets
  3. Disinherit your spouse

In some states, couples can become legally separated – usually to take time to work through their issues. Under legal separation, a couple may live separately, yet keep the right to be on each other’s health care plans, make medical decisions, inherit property, and reconcile the marriage. However, in states that do not allow for legal separation, such as Texas, Delaware, Florida, Georgia, Mississippi, and Pennsylvania, spouses may elect estrangement without committing to divorce, thinking they might repair the relationship in the future.

In abandonment cases, one partner leaves the other and might cease all contact, or contact might be sporadic. Abandoned spouses might not dissolve the marriage because of various reasons including not being able to afford an attorney; they do not understand the law; and think they are already divorced.

However, should an abandoned spouse decide to divorce their estranged spouse, it can be possible even if you cannot find your marital partner.

Most jurisdictions require that you or your attorney attempt to locate your estranged spouse to notify them of the divorce filing. For example, your attorney might research your spouse’s possible addresses and send letters to these addresses informing them of your divorce.

If your spouse does not respond, your divorce will be uncontested, and the court can grant your divorce, particularly if you and your spouse do not share assets, which is common in cases where spouses haven’t been together in years.

It is crucial to understand the legal effects of estrangement. The Law Office of Antoinette Bone can help you create an Estate Plan that includes strategies in dealing with an estranged spouse or family members.

Call our office today to schedule your appointment.

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