The Rights of an Estranged Spouse

By Mackenzie Maxwell

Updated January 27, 2020

While most people get married with hopes of a happily-ever-after relationship, such a fairy-tale union is not always possible. Whether the spouses slowly drift apart or a serious incident causes a split, couples separate for many different reasons.

In the moment, estranged spouses may feel indifferent to the exact legal definition of their relationships. After all, the ex-couple may be happy enough just to live separate lives. However, divorced, legally separated and abandoned spouses ‒ all have different rights.

What Is an Estranged Spouse?

Legally, there is no specific definition of an estranged spouse, nor is there a legal definition of “estranged.” In general, spouses are estranged when they were once married and lived together, but they now live separate lives.

Estranged spouses may remain legally married, get divorced or maintain a legal separation. The legal rights of an estranged spouse depend on the legal status of the relationship.

Read More: How to Get Divorced From an Estranged Husband

Types of Spousal Separation

In general, there are five ways spouses can stop living their lives together:

  • Divorce.
  • Abandonment.
  • Legal Separation.
  • Non-Legal Separation.
  • Annulment.

A divorce puts a legal end to the relationship. Depending on state laws, the divorce may be at-fault or no-fault. Some states allow only one person to file for divorce. Other states require both spouses to consent unless there is fault, such as an affair or abandonment.

An annulment happens when a court rules that the marriage was invalid in the first place. Therefore, an annulment makes it seem like the marriage--and the marital rights--never existed.

Each state sets a different standard for the definition of spousal abandonment. Generally, simply moving out of the family home does not constitute abandonment. However, a spouse who leaves home, stops completing her family duties, and who has no intention of coming back may have legally abandoned her family.

A legal separation is available in some states. In this situation, spouses remain married and retain some legal rights. However, their finances may become disentangled. Finally, non-legal separation is a status in which the spouses remain legally together, but they live entirely separate lives. This often happens in states that do not offer legal separation.

Rights of an Ex-Spouse

When partners get divorced, almost all the rights regarding each other are terminated with a few exceptions. For example, exes may be entitled to alimony or child support, depending on the judge’s orders. If children are involved, spouses must also follow custody orders.

One lesser-known right of divorced spouses is the right, in some situations, to Social Security benefits. Ex-spouses may collect Social Security if the marriage lasted at least 10 years and the person attempting to collect is:

  • Unmarried.
  • Over the age of 62.
  • Entitled to fewer Social Security benefits than the ex-spouse.

Rights of an Abandoned Spouse

If a spouse abandons the marriage, the other spouse can file for abandonment in court. Depending on the laws of the state and the goals of the person filing the suit, the person who was abandoned may seek:

  • Divorce.
  • Protection from financial liability.
  • Custody of any children.
  • Full ownership of the home.

In some states, the abandoned spouse also may disinherit the abandoning spouse.

Rights of Legally Separated Spouses

In states that recognize legal separation, this option can leave an estranged spouse with fewer rights than a divorce, but more rights than they would have if they stayed together. With a legal separation, spouses can:

  • Remain on the other person’s health care plan.
  • Make medical and financial decisions as next-of-kin.
  • Inherit the other person’s property upon death.
  • Legally reconcile.

Separated spouses also retain some of the liabilities of marriage. For example, if an estranged spouse in this situation gets into financial troubles, it could affect the other person.

If spouses live separately but are not legally separated, they retain all the rights of a married couple. These rights include inheritance, medical decisions and financial assets.