What happens when you are separated but you have not gotten divorced and your spouse dies?
Despite some people’s beliefs, simply living separate and apart from your spouse for some extended period does not divorce you from your spouse. You must have a final divorce decree (or annulment) that has been signed by the Judge and filed in the Clerk of Court’s Office to terminate your marital status for purposes of determining marital rights. A decree of separate maintenance does not terminate the status of spouses under Section 62-2-802 of the South Carolina Probate Code. This means that if you pass away before your divorce is finalized and you either have not updated your will or you do not have a will, your estranged spouse may inherit your estate.
What happens if a spouse dies after a final divorce decree is in place, but that spouse never updated his Last Will and Testament to reflect that he is no longer married and in his Will, he leaves everything to the person who is now his ex-wife? Is it fair for the ex-wife to receive what she would have received if they were still married at the time of his death? Fortunately, South Carolina’s Legislature has anticipated these types of instances and created a law to handle this situation. Section 62-2-507 of the South Carolina Probate Code revokes a testator’s will to the extent necessary to omit an ex-spouse from inheriting from the testator’s estate. However, you should not rely on this statute to handle every situation. There may be instances, especially involving life insurance policies or banking and investment accounts, where an ex-spouse may still be entitled to be the beneficiary despite being divorced (and despite the operation of the statute). Following a divorce, it is always advisable to revisit your estate documents, such as Wills and Powers of Attorney, along with other non-probate documents, such as beneficiary designations on financial accounts and insurance contracts, to make sure that your intent will be carried out if you unfortunately pass away.
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Blog post by attorney Ryan McCarty. Click here to learn more about Ryan.
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