As the divorce rate among married couples has stabilized at around forty-five percent in recent decades, an increasing amount of couples looking to split have taken the approach of staying permanently separated, but not legally divorced. Although looking from either spouse’s point of view, such an approach is the fiscally responsible thing to do, since divorce requires court appearances and possibly the use of an attorney if things go awry, not going through with legal divorce procedures can create future obstacles for both the client and prospective attorney.
Although daily life under permanent separation may feel like a legitimate divorce, complications can always materialize, especially in an unexpected scenario like the case of Anthony Bourdain, a celebrity chef, and television personality. After staying together for several years, work and other commitments eventually led Bourdain and his wife to go their separate ways while successfully co-parenting their only child. In fact, in 2016 Bourdain commented to People Magazine “As a family, I think we’ve done a really good job, and we’re doing a really good job and would like to keep it that way.” However, after his untimely death in June of 2018, a lack of proper divorce documentation presented its first obstacle; his estranged spouse was now the legal beneficiary of his estate. Additionally, she became the legal owner of his body and had full control of his funeral.
While this may be an acceptable outcome for the Bourdain family, considering that the couple had separated on good terms and had worked in conjunction to look after their child, the same may not be true for other couples looking to split. Being that familial conflict can occur spontaneously, it is important for couples looking to cut ties to consider the pros and cons of becoming an estranged spouse.
Even if your separation is good-natured, there are several steps you may want to dedicate some thought to. Firstly, if you wish to have someone other than your estranged spouse be able to plan your funeral, you need to have a Health Care Directive in place. A Health Care Directive, also known as a Health Care Proxy, is a legal document in which a person identifies and states the actions that should take place regarding their health if they are not able to make decisions for themselves. Furthermore, as with the case of Anthony Bourdain, a Health Care Directive allows the surviving spouse to handle the disposition of the body in the event of death. Unlike making amendments to the beneficiary designations on your estate plan in a divorce proceeding, you are permitted to make a new directive that does not include your spouse.
Communication is key in the case that a separation is expected to be permanent. You and your spouse need to thoroughly think about all the areas in which spousal rights exist to make sure you both end up in the most ideal situation possible. It is generally recommended that you include your funeral plans in your health care directive, and make sure that all relevant people have copies of it. Moreover, communication should not end with your partner, but rather be had with your family law and estate planning attorneys. People need to understand what is happening on both sides of the planning and you should never keep your attorney out of the loop.
Although estate planning is likely to be the last thing on one’s mind after going through a separation with their spouse, it is possibly the most important thing they can do to make sure their assets end up in the right hands if you pass away. If you or a loved one are going through a separation, make sure to consult with a licensed estate planning attorney who will guide you through the process of updating the relevant estate planning documents to ensure peace of mind in the case of the unthinkable.