To Our Readers: We continue last week’s column dealing with estate and health planning at the time of separation and divorce. The previous column can be found at www.flyingsolo.com

If your state of residence follows the law in the majority of most states, even if your will has language that cuts your estranged wife out of a share of your estate, should you die while separated, your estranged spouse will have the right to elect against your will and receive a statutory share, generally one-third of the estate.

On the other hand, should you die without a will and be married at the time of your death – even though you and your spouse were estranged -- most state laws provide that a third to a half of your estate will go to your surviving spouse and the rest to your children. If your children are minors, in all probability, the local probate court will require their shares be maintained in some type of guardianship account that gives regular reports and accountings until the child reaches age 18. If you had a will, you could have provided for a trust to hold these assets for the children without probate court intervention.

When you are dealing with minor children, there are a few details you should remember: 1) A guardianship is a comparatively difficult and inflexible way to manage financial affairs for children. And at the end of the guardianship, the assets must be turned over to the children at age 18 (or, in some instances, age 21) – a time when most young adults are not capable of handling large sums of money. But if you had created a trust in your will, you could have dictated that the assets not be turned over to the children until they reached 25 or 30 years of age.

What if you are married – but estranged -- and die without a will and have no children? Your surviving spouse could receive all of your estate (depending on where you live), and, if less than 100 percent, the remainder would be distributed to your surviving parents or, if they are deceased, to your siblings. An important consideration here is that if either or both of your parents are disabled or in a nursing facility, the receipt of assets from your estate could very well disqualify them from some or all of their benefits.

If you die without a will as a single, divorced parent, generally speaking, state laws provide for your estate to go to your surviving children; however, this could be a problem if any of your children have special needs or disabilities.
Remember: If you are separated, but not divorced, and die with children, your estranged spouse will be entitled to a share just as if you have been living together – unless your state law provides differently.

If you have minor children, you should always name a trusted person in your will as guardian and trustee of them and their property. In all cases, both primary and alternate appointments should be made – just in case your primary appointee can’t or won’t serve. The maker of the will must have what is known as "testamentary capacity" – meaning that he/she must be of sound mind, understand the objects of his/her affection, know his/her property, and understand where he/she wants the property to go.

Next week: Durable powers of attorney and health care decisions before and after divorce.