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Addressing Legal Issues For Your California Family's Past, Present And Future

If you're separated from your spouse, review your estate plan

When designer Kate Spade and chef Anthony Bourdain passed away earlier this year, they each died living apart from their respective spouses. The fact that they were separated had a significant impact on the administration of their estates.

Everything that has been written about Spade and Bourdain since their deaths indicates that they were on friendly terms with their spouses, working together as co-parents.

Given the U.S. statistics on separation, it is likely that a number of Californians choose to stay separated rather than divorce. Researchers have found that the divorce rate is between 42 and 50 percent. If the permanent separations were added in, the estimated divorce rate instead would be about 50 percent.

But by the time of his death, Bourdain hadn't altered his estate plan to remove his wife as the beneficiary. That means she held all the decisions in her hands as his beneficiary and his legal next of kin.

Perhaps that was his intention. However, what if it wasn't and not removing her from his estate plan was an oversight? When a death occurs before a divorce, the surviving spouse has legal rights unless other provisions are spelled out in your estate plan.

If you want your medical decisions made or your funeral planned by a sibling, parent or someone else instead of your estranged spouse, you'll need to sign a new health care directive. A health care directive or proxy names the person who can make decisions about your medical care if you can't. California law doesn't require that you give your spouse that responsibility.

Your funeral plans should be attached to your health care directive, and all the people impacted by it should be notified. Additionally, if a family law attorney has handled your separation, they should communicate with your estate planning attorney. That way, your estranged spouse won't be left with any surprises upon your death.

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