If We Were Separated When They Died, Do I Still Inherit?

Separation and divorce can be a long process. What happens if we were separated when they died?

Well, the terms of separation are really important in this context and it has a specific legal meaning.

Here is why I am making that point; I have gotten many calls over the years and it is almost always wives who survive their husbands, so I am going to use that stereotype. I will get a call from a wife who says, “My husband and I were separated, he has died, I know he didn’t have a will, am I going to inherit?” What exactly they mean by we were separated when they died legally will have a large effect on inheritance.

There is a difference between being socially separated when they died and being legally separated.

I will often times hear about how the spouse has moved out, there was an initial pleading filed in the family of law court asking either for divorce or for separation. There has been some amount of litigation about that, but nothing has really been resolved in the family law court. Or sometimes, I will hear about people who have moved out and they have considered themselves separated. But nothing actually got filed in the family law court. Well, we are talking about a legal proceeding.

Being socially separated when they died does not count.

You are not separated within the eyes of the law under those circumstances.

You can contrast that from the legal separation. And here is what a legal separation means for our purposes today, it means that somebody filed in the family law court a request, either for legal separation or for divorce. Somewhere along the way, during that family law preceding, the family law court judge issued an actual order of the court that set the date of legal separation.  That is the absolute critical analysis in deciding whether or not you are going to inherit.

If there was a date of legal separation set, then in the eyes of the probate court, you are not husband and wife.

You are not going to inherit under those circumstances.

Now, that doesn’t mean that you don’t have a right to the property, and it doesn’t mean that you won’t still be able to litigate for whatever you are supposed to get.

If the family law court order actually divided the property, or if the family law court said, I am setting the date of the solution and now I am retaining jurisdiction then you have to have that fight in the family law court. On the other hand, if what has happened is, a date of dissolution was set, but there was no retention of jurisdiction (and that has to be stated specifically in order). You are then going to be litigating that issue in the probate court. So whether you’re going to inherit, matters entirely on what has happened in your family law proceeding and your order (if there is an order) and what it says.

If you find yourself in the situation where you and your spouse were going through divorce and were separated when they died, you need an experienced attorney to assist you. This can be complicated and it helps to have someone on your side that knows what happens and how things should be handled. Contact our office today and schedule your free 30-minute phone consultation.