Going through a separation and then a divorce is stressful. When you think about the legal matters to attend to you are probably focused on child support, alimony, and dividing property. For many, the furthest thing from your mind is, what happens if I die during the separation? But updating your estate plan once you have decided to separate, not juSt after divorce, is very important. Waiting could be costly.

What happens if you die while you are separated?

If you are going through a separation you will likely fall into one of two categories: (1) you have a will giving most, if not all, of your estate to your separating spouse or (2) you have no will. In the first case, separation will not break this will. If you were to pass while separating your spouse would get everything outlined in the will. In the second instance, your spouse is still entitled to a portion of your estate, depending on your family makeup. If you have no children, your spouse gets everything. If you have one child, your spouse gets half of your estate, and if you have more than one child, your spouse gets one third of your estate.

When you make the decision to separate you should create a new will if you want to minimize the amount of your estate your spouse is entitled to if you passed away during the separation. In North Carolina you cannot completely disinherit your spouse and they are entitled to an “elective share”. The elective share ranges between 15% and 50% of the spouse’s estate depending on the length of the marriage. Putting a will in place reflecting your current wishes, without your spouse included, during separation will avoid unwanted transfer of property by default statutes. You may also be able to negotiate the treatment of the elective share in a separation agreement.

There are numerous other legal documents to consider when going through a separation. For many decisions your spouse is the default decision maker. Do you have a Health Care Power of Attorney in place? Is it your spouse? What about a Durable Power of Attorney? For all of these common estate planning documents you should seek counsel from an estate attorney as well as your family law attorney.

At Senges Law Firm, PLLC we will work with you and your family law attorney to make sure you have a consistent plan in place and your team is working for you.

Senges Law Firm, PLLC can be reached at or by phone at 336-252-8878. If you are a family law attorney and want to discuss the Senges Law Firm approach to estate planning feel free to email me at

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