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Estate planning for separated spouses

Celebrity deaths like those of Kate Spade and Anthony Bourdain have drawn light to a particular issue in estate planning that can be just as significant for everyday families in Louisiana. While many spouses separate before divorcing and may hesitate to file divorce papers even as they lead separate lives, this can have unanticipated impacts on how key decisions and assets are handled in case of one spouse's death or incapacity. There are a number of reasons that can delay a formal divorce filing, especially if the separation is amicable; these can include informally handling child custody or sorting out the complications of businesses or other investments.

However, this means that a person's separated spouse is still their legal next of kin, with all the rights and responsibilities that accompany that. Especially when separated spouses are young and are not openly considering death, their estate plans may not reflect the changes to their relationship. Permanent separations are not uncommon in the United States; while the divorce rate is generally estimated at between 42 to 45 percent, that number can rise to 50 percent when permanent separations are included.

While separated spouses may remain amicable or close, they may not consider that their former partner will handle funeral arrangements and other key decisions by default. There are 1,138 laws across the country that are impacted by marital rights, including the ability to access Social Security benefits or receive a mandatory share of a spouse's estate.

However, if people decide to separate but not divorce, there are estate planning steps that they can take to separate their funeral arrangement and health care decisions from their former partner. This can include creating a new health care directive or proxy. An estate planning lawyer might be able to help separating spouses to deal with the complex issues presented and develop plans that reflect their interests and goals.

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