Today we received an inquiry from someone who wanted help probating her father’s estate. She said that his “ex-wife” had released her interest in the home several years ago before she disappeared, and by the way, although a divorce was filed, it had never been completed. It was apparent that she believed that the “ex” wasn’t entitled to anything. We told her to go see an attorney.
Unless you have a divorce judgment terminating your marriage, you’re still married. Generally, a living spouse can inherit from a deceased spouse’s estate even if they’ve been legally separated for a long time. Even if you prepare estate planning documents saying otherwise, you can’t disinherit your spouse. The court will award a portion of the estate to the spouse.
Remember, if you’re not legally divorced, your spouse may also be entitled to your social security benefits and other assets even if other beneficiaries are named on your accounts. Although community property and separate property are treated differently during life, they are both issues to handle in regards to a separated spouse after death. Are you really intending to surprise your separated spouse with this kind of gift?
What’s even messier?

Marrying someone else when you haven’t finalized your divorce first. Don’t be shocked. In California, it’s a common ground for the annulments that are filed. Imagine straightening out the legal entanglements after adding some more property and a few new children. The moral of the story is that a marriage is a lot more than a piece of paper. Even though it’s supposed to be a serious life-long emotional, physical and spiritual commitment, at least the legalities of the relationship should be known.