Does My Spouse Inherit Property if We Separate?

By Jeff Franco J.D./M.A./M.B.A.

The laws of the state in which you reside govern who will inherit your property when you fail to leave instructions in a valid will or when one exists, but you disinherit your spouse. However, the amount of property that your spouse will inherit, if any, depends on whether your state continues to recognize your marriage after you separate.

State Intestate Succession

If a legally enforceable will doesn’t exist at the time of your death, a probate court will distribute the property in your estate in accordance with the state’s intestate succession laws, which commonly allocates all property to your spouse and children. Under the Uniform Probate Code, which 17 states have adopted, your spouse will always receive at least some of your property. The UPC provides the distribution framework for a number of scenarios, so the amount your spouse receives depends on whether you have children together and if you have children from a previous marriage. For example, if you don’t have children or your spouse is the parent of all your children, your spouse takes 100 percent of your estate. However, if you have a child from a previous marriage, your spouse and the child both receive a portion of your property.

Physical Separation

Your spouse retains a legal claim to your property under the intestate succession even if you physically separate, but have yet to obtain a decree of separation or divorce. Although the type of property to which your spouse has a legal claim can vary depending on the state in which you live, it typically includes all property you acquire during the marriage, your personal property and all financial accounts. As a result, deciding to no longer share the same household, even if in anticipation of filing for divorce, has no legal effect and states will still recognize your marriage.

Legal Separation

Obtaining a decree of legal separation in your state may, however, affect your spouse’s ability to inherit your property under intestate succession laws. The 17 states that follow the UPC continue to recognize your marriage for all purposes despite the existence of a legal separation. In these states, your spouse has a right to your property regardless of whether the intestate succession laws apply or you disinherit them in a will. New York, on the other hand, which does not follow the UPC, will not recognize your marriage for purposes of inheritances once you legally separate from your spouse.

Elective Share

You also need to consider the implications of drafting a will that intentionally disinherits your spouse. If your state still recognizes your marriage after the separation, your spouse has a right to an “elective share” of your estate. An elective share insures that surviving spouses are not indigent as a result of their spouse’s death. Your state’s elective share statute will determine the amount of property your spouse will receive. If you live in a state that follows the UPC, for example, your spouse can elect to take approximately 50 percent of the property in your estate.