Your spouse may still inherit a part of your estate in California even if you are separated and not living together at the time you die. The California Probate Code, beginning with Section 6400, addresses how your property passes when you die without a will. Not having a will is called dying “intestate”. If you are married when you die, certain rules apply to how much your surviving spouse inherits but if you are “legally separated” yet still married, those rules don’t apply and your spouse gets nothing. There is a difference between simply being “separated” and being “legally separated”.
Being “separated” and dying without a will results in your spouse getting half of your community property which means that the surviving spouse ends up with about three-fourths of your community estate (the half already owned by the surviving spouse plus half of the dead spouse’s community property). It also means that the deceased spouse’s separate property all goes to the surviving spouse who may have previously separated and moved away from the decedent if the deceased spouse does not leave kids, grandkids, parents, siblings, nieces or nephews. If any of those types of “heirs” are alive when you die intestate, then your surviving spouse won’t inherit all of your property since it will be split with the other heirs according to the rules of intestacy. Nonetheless, if you don’t want any of your property going to the person with whom you are still married when you die even if you’ve “told” others what your wishes are, put your wishes in writing.
Your marriage is not necessarily over simply because you may be living apart. Some spouses spend huge amounts of time apart while they are attempting to reconcile. Some spouses continue to maintain an intimate spousal relationship while living apart. When there are kids, spouses may want to postpone a divorce until some later time related to the kids’ life so as to reduce the impact on them. The time when an inference of being “legally separated” may be made is when one spouse unambiguously declares there is a complete breakup of the marriage; otherwise, no legal inference of being legally separate is made simply because spouses live apart from one another.
A legal separation requires proof that at least one spouse has a subjective intent to end the marriage and there is objective evidence of conduct furthering that intent. The mere fact that spouses are “living in separate residences” does not, in and of itself, demonstrate the necessary “subjective intent to end the marital relationship.”
Spouses who are separated because of marital problems probably don’t want the other to inherit anything of theirs when they die. The solution is for both of them to prepare their own will or their own living trust. Both the will and living trust means that the one who dies goes testate. Testate succession generally follows the intent of the one who clearly expresses his or her wishes in the document. Usually, a will is easy to write but a living trust is more complex and requires the help of an experienced probate attorney.