What Happens if My Spouse Dies and We Are Separated But Not Divorced?


Dealing with marital issues is never easy. Depending on a couple’s unique situation, they may opt to legally separate instead of going straight to divorce. Not only does separating offer financial benefits, such as the opportunity to maintain health insurance coverage, but it also gives couples the chance to work out problems if they so choose. If you decide to separate from your spouse in the state of Arizona, it’s important to be aware of the legal complications that may ensue. Read on to learn more about legal separation and find out what happens if one spouse dies while the couple is separated but not divorced.

Understanding the Differences Between Separation and Divorce

If you’re considering separation, it’s important to understand how this status differs from being divorced. In the state of Arizona, the processes of filing for legal separation and divorce are almost identical. In both cases, individuals petition and receive approval from the court. However, while divorce is a permanent state, separated couples can file a motion asking the court to vacate the original separation order. Additionally, divorced couples are allowed to remarry while separated couples are prohibited from doing so.

How Separation Affects Community Property

If you’re considering a legal separation, it’s important to recognize the ways in which community property is affected. When spouses separate, the court terminates the community property relationship. In other words, assets, debts, and income are no longer legally shared between the two parties. Additionally, separation can affect the way a couple files for taxes. Married couples receive certain tax benefits not enjoyed by couples who are divorced or legally separated.

It’s worth noting that legally separating from your spouse does not affect beneficiary arrangements. While the ex-spouse is disqualified from being a beneficiary in the case of divorce, when a couple is separated the will remains valid, and the living spouse can still inherit. For this reason, separated couples may want to take steps to adjust their will or trust prior to getting divorced. On the other hand, a divorced person who wants their spouse to inherit will need to take steps to include their ex when estate planning.

Does Living Apart Show Separation?

Couples sometimes assume that living apart means that they are legally separated in the eyes of the court. However, according to the state of Arizona, living separately is not enough to demonstrate “subjective intent to end the marital relationship.” Generally, the court will not infer a legal separation just because spouses have been living apart for a significant period of time. With that in mind, you should be aware that living apart will probably not affect your spouse’s right to inherit. If you want to avoid estate planning problems, consider a formal separation or divorce. You can also talk to a lawyer to draft a plan about who will inherit your property should you pass away.

Count on JacksonWhite for Probate Help in Arizona

The probate process is already complicated, and even more so if your spouse dies while you are separated. At JacksonWhite Law, our probate law team has the knowledge and experience to take care of you and your family. Contact us below to get started.

Call Our Probate Team at (480)467-4365 to discuss your case today.

Contact Probate Attorney Ryan Hodges

Call (480)467-4365 or fill out our contact form to schedule your consultation and discuss your best legal options.