In the wake of celebrity chef and TV personality Anthony Bourdain's tragic death last week, many articles have been written about his complicated family situation, specifically that Bourdain and wife were permanently separated (but not divorced) at the time of his death.
Like death, divorce and separation are topics nobody likes to talk about. However, they have very different effects on an estate plan. In Anthony Bourdain's case, that leaves a host of estate planning issues unresolved — and millions of dollars up for grabs.
This blog post will discuss the impact of divorce and separation on estate planning, focusing on the following topics:
- What is the difference between divorce and legal separation?
- Why choose legal separation over divorce?
- Can a spouse still inherit after a legal separation?
- How can I protect my estate from a separation?
The Estate Planning Effects of Divorce vs. Separation
It is increasingly common for spouses to remain permanently separated yet not divorced. Most researchers estimate the U.S. divorce rate somewhere between 42-45%. But taking permanent separations into account, the rate is actually closer to 50%.
What is the difference between divorce and legal separation?
The main difference between divorce and legal separation is that, under a legal separation, the marriage is not actually dissolved. This means that the parties cannot re-marry, since you can only be married to one person at a time.
In Oklahoma, a legal separation can be granted on the same grounds as divorce, including (among other things) incompatibility of the parties.
A separation order can also involve property division, alimony, child support, and other things usually included in a divorce decree.
As you can see, a legal separation is just one step short of divorce. It provides all the benefits (and headaches) of divorce without actually ending the marriage.
Why choose legal separation over divorce?
Some couples believe that they just need time and space to resolve their differences. Because a legal separation does not end a marriage, it can later be "undone" and your marriage will stay intact.
Other times, couples choose separation for the sake of their children.
Bourdain and his wife were together for a number of years, but work and other commitments caused them to drift apart. While they no longer wanted to live together, they did not want divorce to get in the way of their ability to co-parent their child.
In a 2016 People magazine interview, Bourdain put it this way, "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."
Can a spouse still inherit after a legal separation?
Married individuals have special rights. For example, they can file joint tax returns, file for joint bankruptcy, receive Social Security survivor benefits, etc.
Perhaps most notably for Anthony Bourdain's estate, a married individual has the legal right
- To inherit from his or her spouse, and
- To manage the deceased spouse's estate and funeral arrangements.
(Because they do not have the same legal rights as married couples, there are special estate planning considerations for unmarried couples.)
To the first point, if a person in Oklahoma dies without a will, trust, or prenuptial agreement, his or her spouse can inherit roughly half to all of the decedent's estate. The exact amount depends on number of children, parents, and other factors. (See Okla. Stat. tit. 84, sec. 213.)
To the second point, Oklahoma law gives married individuals priority over managing the estate of their deceased spouse. (See Okla. Stat. tit. 58, sec. 122.) You can change this default preference by executing a last will and testament naming someone else as your choice for executor.
Generally speaking, spousal rights (including those related to inheritance) can be extinguished only by a final divorce decree. While legal separation can divide property and provide for child support, it cannot alter or end a spouse's legal rights. Specifically, Oklahoma law says:
A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property, and except that they may agree in writing to an immediate separation, and may make provision for the support of either of them and of their children during such separation.
(See Okla. Stat. tit. 43, sec. 205.)
In other words, your spouse does not lose the right to inherit from you just because you are legally separated. This is one of the main issues facing Anthony Bourdain's estate after his death: even though he and his wife were separated, what rights does she have in his estate?
It remains to be seen whether Bourdain's wife will inherit anything from him, since we do not know exactly what type of estate planning documents, prenuptial agreement, or other arrangements Bourdain had in place. At the very least, she will likely be the one controlling his funeral and other aspects of his estate in the aftermath of his death.
Bourdain's situation is a bit odd but not uncommon. And it provides a great case study for the pitfalls you can encounter with a legal separation.
There are, however, certain estate planning tools you can consider in trying to protect your assets in the event of a divorce or separation.
How can I protect my estate from a legal separation?
1. Change your Durable Power of Attorney.
Many married individuals have a durable power of attorney naming their spouse as "attorney-in-fact", which gives the spouse the power to make financial and/or medical decisions for them.
The authority granted in a power of attorney is not one of the spousal rights discussed earlier, so it does not end just because you get divorced.
Consider this: if you have named your spouse as attorney-in-fact and you are now separated, they can still access your bank accounts and medical records.
By executing a new power of attorney, you can ensure your estranged spouse cannot control your finances while still naming someone else to make decisions for you if you cannot make decisions for yourself.
2. Change the executor of your Last Will and Testament.
While you are still married, your spouse has a legal right to a certain portion of your estate.
So, even if you wrote a Will that said your spouse gets nothing, they would be able to take a "forced share" of your estate.
However, you can change your Will to name someone else as executor of your estate.
Changing your Will means your spouse would not be the one who manages probate, controls the finances of your estate, and makes other important decisions regarding your assets.
That can make a HUGE difference.
3. Consider a prenuptial agreement.
This requires some foresight and is not always an option people like to consider.
A prenuptial agreement is a document that lays out the rights of a couple in the event of divorce or death of a party.
It often includes provisions about one spouse giving up inheritance rights over the other spouse's property, inheritance rights of children from a previous marriage, rights to a business or professional practice, division of property and debts, and other financial aspects of marriage.
However, as the name suggests, a prenuptial agreement is signed before marriage.
Many couples think of "prenuptial agreement" as a bad word, but in reality it is simply a tool that can be used to clearly define the rights and obligations of each party to a marriage.
Make an estate plan before it is too late.
Whenever you die, your family will be left with a number of problems to solve. Any death would certain have an emotional impact, but a sudden death can also have a severe financial impact on your loved ones.
Some of the problems now facing Anthony Bourdain's estate could have been avoided with an estate plan.
You never know what the future holds or when you will die, but estate planning can help make things easier on you and your loved ones no matter what happens.
To learn how you can protect your estate in the event of a divorce or separation, contact the experienced Oklahoma City estate planning attorneys at Postic & Bates for a free, no-obligation consultation appointment.
David M. Postic is an associate attorney at Postic & Bates, P.C. His practice includes estate planning, probate, real estate, adoption, business law, and litigation.
You can email David through our Contact Us page or by calling our office at (405) 691-5080.
[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]