A review and modification of existing estate planning documents or the creation of a new estate plan is strongly recommended following a divorce. Often, it is advisable to revise an estate plan even before a divorce is final. Such revisions can be important not only for the couple who is divorcing, but also for parents, in-laws, or other relatives who may have estate plans that involve one or both of the divorcing spouses.
This article presents general information on the status of an ex-spouse under Utah’s intestate succession laws. For information and advice specific to your individual circumstances, contact us now to see how we can help.
Status of an Ex-Spouse under Utah Intestate Succession
When a person dies in Utah without a will, the person is considered to have died “intestate.” The distribution of that person’s assets is then determined in the manner provided for in Utah’s probate code.
Utah’s intestate succession laws provide that a surviving spouse is entitled to a significant portion of the decedent’s estate. However, under Utah Code 75-2-802, when a divorce decree has been entered or a marriage has been annulled, the ex-spouse is not considered to be a “surviving spouse” and is not entitled to inherit under intestate succession.
The provisions excluding an ex-spouse from inheriting under intestate succession do not apply if the decedent has executed a last will and testament that requires otherwise. If a valid will exists, the provisions of the will should normally be followed.
Rights of a Legally Separated Spouse
Many couples may separate informally for a period of time before filing a divorce action in the courts. Other couples may file for and obtain a formal order from the court establishing a legal separation. Neither an informal separation nor a formal legal separation terminates the husband-wife relationship. Therefore, until or unless a formal divorce decree or annulment is entered, a separated spouse should be entitled to inherit either through a last will and testament or under intestate succession laws in Utah.
Note that Utah law provides for different treatment of a legally separated spouse in the context of health care decisions. Normally, a person’s spouse will have first-place priority as a surrogate decision maker if the person has lost the ability to speak or make their own health care decisions. If no advance health care directive has been executed directing otherwise and if the spouses are legally separated, then that spousal priority is lost for purposes of making health care decisions.
Rights of a Spouse under Intestate Succession
While an ex-spouse is not entitled to inherit under Utah intestate succession laws, the rights of a current spouse can depend on whether any children were born to the decedent.
Intestate succession provides two scenarios under which a current spouse will inherit 100% of the decedent’s property. The first involves cases where the decedent had no children. Regardless of how many times the decedent may have been previously married, if there are no children then the current spouse should inherit 100%. The second scenario involves cases where children were born to the decedent, and all of the children are also children of the surviving spouse. In such circumstances, the surviving spouse also inherits 100%.
Intestate succession requires a different distribution if the decedent had any children who are not also children of the surviving spouse. Subject to certain exemptions, the surviving spouse is entitled to 50% of the decedent’s estate with the remainder being divided among the decedent’s children. Depending on the value of the estate (if the value is relatively small), the exemptions for the spouse can sometimes exceed the entire value of the estate.
Finding an Attorney for Estate Planning
Regardless of your circumstances, creating a personalized estate plan including a will, and in many circumstances a living trust, can help to ensure that your estate will be distributed according to your wishes rather than according to rigid state law.
Contact us today to schedule an initial consultation with Utah estate planning attorney Stephen Howard. Find out how the right attorney can help you.