Sometimes married couples separate but don't initiate divorce proceedings due to time, effort or expense. One party may begin a relationship with a new person, or both may. Many of these couples formed while one is going through a divorce -- who cohabit or have children without getting married -- assume incorrectly that because they live together, the estranged spouse has no legitimate claim to assets or property. In the eyes of the law, if a divorce has not been finalized, the legal spouse retains all legal rights no matter the family's circumstance.
Even if nobody has heard from the estranged spouse for a long period of time, he or she remains the legal benefactor in a number of situations involving finances. If no will is in place and one spouse dies, the other spouse is automatically granted full control of the estate and all property therein including life insurance and pension payments. Even if a will leaving the estate to a person other than the spouse is in place, many states give the estranged spouse the right to argue for a portion of the money.
Rights to Children
If minor children are involved and are being cared for solely by one parent, the estranged spouse could have automatic legal rights to them in the event of the caregiver's death. If this is not the wish of the custodial parent, a will should be drawn up with a lawyer that assigns a caregiver and details why the estranged spouse would not be an appropriate choice to care for the children.
Medical Decision-making Rights
Typically, the legal spouse is considered to be next of kin for all medical decisions when one partner is rendered unable to make decisions for himself no matter the recent terms of the relationship. If this is not to one party's wishes, he should put a living will into place giving another person powers of medical decision-making should the need arise.
Divorcing an Estranged Spouse
If one party in a marriage wishes to ensure that the estranged spouse does not have access to property or children, divorce proceedings can be initiated even if the whereabouts of the estranged spouse are unknown. This is done with a Divorce by Publication. Courts require proof of a search through the post office and motor vehicle registration and after that search has failed, publication of the intent to divorce in specific newspapers and circulars. If the estranged spouse fails to respond within a set time period, the divorce will be granted and all legal rights severed.
- "Pennsylvania Trust and Estates Blog"; Divorce and Your Estate Plan; Patti Spencer, Esq.; August 2009
- "HG Legal Directories"; Divorce and Estate Planning; Steven M. Adler, PLLC; June 2010
- "Orlando Sentinel"; Estranged Spouses Have Rights to Estates; Jan Warner and Jan Collins; April 2008
- Jeffrey B. Peltz, P.C.: I Want a Divorce, But I Don't Know Where My Spouse Is