What kind of estate planning advice would I have for a person who is separated from his or her spouse? This question came up recently on a professional listserve that I subscribe to. My advice is simple to give, though I realize it may be hard to follow: get a divorce.
This is because, if you don’t have an estate plan, or even if you do, Massachusetts has a plan for your estate: the first $200,000, plus (if you have children) half of everything over that, goes to your spouse. This is what happens if you have no will. You cannot disinherit your spouse in your will. The spouse can “elect against” the will, having the will set aside, and taking the share he or she would have received if there was no will.
“Spouse,” in this context, means the person you were legally married to. The marriage may be irretrievably broken. You may be separated, you may not have spoken for years, but if there was no legal divorce, you are still married, so far as probate law is concerned.
This reminds me of the days when I was in general practice, and the nicest divorce I ever did. A pleasant, middle-aged couple came to see me for estate planning. I asked them, just to make sure, “are you married?” She said yes, and he said no.
It turned out they had been living together for twenty years. She had left her husband, but had never gotten a divorce. I told them I could not plan for them, unless this situation was corrected. So I represented her in the divorce.
There was plenty of money on both sides, and no children. You would think, after twenty years, there would be nothing left to fight about. But, you know, they found something? A piece of furniture! Even a “nice” divorce is not very nice.
What impressed me most of all, was this very dignified lady beginning to weep, as the divorce was finalized. Even though it was twenty years ago, the ending of a relationship was a hard thing to face.
So I realize, it may be hard to face the process of a divorce, the formal ending of something that was begun with joy.
Can a trust protect against a spousal election? Possibly, if there are no probate assets at all. But I still think it is better to have one’s legal status reflect emotional reality, even if the process is hard to face.