January 26, 2017
When you separate from your spouse, you soon start thinking about the property that there is to split between the two of you, some of which you never noticed even existed. There is an overwhelming volume of things that you need to do, and last on your mind is your Last Will and Testament.
It is true that a spouse can be disqualified from taking property belonging to a spouse who dies without a will if 1. the spouse was separated from the decedent and cohabitating in uncondoned adultery; 2. The spouse willfully abandoned the decedent; 3. The spouse knowingly contracted in a bigamous marriage; or 4. The spouse has obtained an annulment, a divorce absolute or from bed and board, or has gotten a divorce not recognized as valid in North Carolina. .
Unfortunately, if the decedent leaves a will giving property to a spouse, that spouse may be able to take even if the decedent and spouse were separated at time of death and not yet divorced. A divorce or annulment subsequent to execution of a will does not revoke the will. The divorce or annulment does, however, revoke all provisions in the will in favor of the spouse from whom the testator was divorced, unless otherwise specifically provided in the will. The provisions are revived by the testator’s remarriage to the former spouse. N.C. Gen. Stat. § 31-5.4.
In order to keep the property from your estranged spouse in the event you die before divorce is final, it is prudent to discuss the execution of a new Last Will and Testament with your attorney, disinheriting your estranged spouse from any of the property that you own separately. If an equitable distribution claim is filed, that will continue with your estate after death. While it seems unlikely, there have been instances even while practicing at King Law that a client has died during separation after stating, “That woman is going to kill me yet.”
To ensure the fullest extent of your wishes are carried out, discuss executing a Will with your attorney at the beginning of separation.