The recent tragic deaths of Kate Spade and Anthony Bourdain had more in common than how they died. They were both separated from their spouses at the time of their deaths. While by all accounts these separations were amicable, the fact that they were not legally divorced can lead to a host of estate planning issues.
When spouses decide to divorce, the usual framework is a process involving attorneys and the court system.
But as modern family life is complex, it is becoming more common for spouses to remain permanently separated yet not divorced. It’s a state of gray that many feel comfortable in. Unfortunately for both family law and estate law, it’s a hard place to be.
Just how many couples in the U.S. permanently separate versus divorce is not clear. Most researchers find the U.S. divorce rate hovers somewhere between 42% to 45%. However, when permanent separations are factored in, it is estimated that the rate is really 50%.
The Gray Area of Permanent Separation
While the details of Kate Spade’s separation are not known, Bourdain’s separation from his second wife are well documented.
In fact, Bourdain’s situation is a common one. He and his estranged spouse were together for years. But work and other commitments caused them to move in separate directions.
Yet they had a child – one beloved by both parents — and they wanted to co-parent successfully together.
This is not an atypical situation. Many put the feelings of the family ahead of their own personal wants. Bourdain even mentioned this to People magazine in 2016 in relation to the separation when he said, "As a family, I think we've done a really good job and we're doing a really good job and would like to keep it that way."
But now after his untimely death, it brings up an odd aspect – his estranged spouse is his beneficiary. She will be the owner of his legacy. And in terms of immediate issues, she controls his body and his funeral.
His mother Gladys Bourdain noted to the media that she was unsure of funeral plans yet as his estranged spouse is still legally his next of kin. She was quoted as saying, “Although they are separated, she’ll be in charge of whatever happens.”
Spousal Rights Still Stand In A Separation
While this might be acceptable for the Bourdain family, in the event you consider a permanent separation, it may be prudent to consider the pros and cons of an estranged spouse’s rights.
Upon marriage, spouses are given a bundle of rights that were previously unavailable to them in their single status with their partner. In fact, it is estimated that there are approximately 1,138 laws in which marital status provides an enormous amount of rights and privileges. These rights are as wide-ranging as Social Security benefits to spousal privilege in court to inheritance rights.
Separation does not mean your spousal rights are immediately extinguished.
Only a final divorce decree can fully terminate spousal rights. In the event of a death prior to a divorce, in most situations the surviving spouse will have control in the legal arena.
Precautions That Can Be Taken
Even if your separation is amicable, there are a few steps you might want to consider.
First, if you want to make sure someone other than your estranged spouse is able to plan your funeral, you need to have a new Health Care Directive put in place.
A Health Care Directive or Proxy is a legal document in which a person specifies what actions should be taken for their health if they are unable to make such decisions as well as handle the disposition of the body in the event of death.
This document is state specific.
Unlike changing beneficiary designations or your estate plan in a divorce proceeding, you are permitted to make a new directive and you are not required to name your spouse.
If you make such a change, it is important that you alert the key people.
“It is generally best practice for you to include your funeral plans in your health care directive and make sure the relevant people have copies of it. Especially when there is a separation,” says Paula Leibovitz Goodwin, partner in the Personal Planning Group at Perkins Coie LLP in San Francisco, California.
Further, communication is especially key where the separation will be permanent.
You and your estranged spouse need to think through all the areas where spousal rights exist. It should be part of your planning process as you work through separation issues.
But strong communication should not end there.
Leibovitz Goodwin explains: “Make sure your family law attorney and estate planning attorney also communicate with each other. People need to understand what is happening on both ends of the planning.”
A Separate Peace
Ultimately when a couple is splitting up, they need to find the right way to move forward – whether divorcing or permanently separating. But rather than avoid key issues, the best separation plans might entail deeper planning and an update of your health care directive.
Leibovitz Goodwin sums it up well.
“Don’t be afraid to change your health care directive as a stop-gap issue. Too many people feel they need to do estate planning when they are ready to tackle all the potential issues.
When your life settles down, you can deal with those issues. You can take care of this interim time period.”
And in the cases of Kate Spade and Anthony Bourdain, let’s hope that they find the peace in death that they so wished for in life.
