There are numerous reasons why entering into a separation and property settlement agreement upon or shortly after separation from a spouse is prudent. In this and my next few posts I'll explore a few of these reasons most people contemplating separation haven't even considered.
Under North Carolina Law, marriage and divorce both affect a spouse's inheritance rights but, absent a separation agreement, living apart does not. Each person in a marriage has a right to inherit real and personal property from the other. This is true whether or not the deceased spouse had a will. If one spouse dies without a will, the surviving spouse is entitled to a share of the deceased spouse's property. The amount of money, personal property, or real estate the surviving spouse will receive is based upon the value of the estate and the existence of other surviving relatives. The surviving spouse is entitled to the share even if the spouses had been living separately, intending to get divorced. The right to inherit from a spouse only terminates upon absolute divorce or upon waiver or release by agreement.
A separation agreement waiving inheritance rights is equally as important when one or both spouses has a written will. Absolute divorce will automatically revoke any provisions of a written will granting property to the deceased's former spouse. Separation, absent an agreement, will not. By signing a separation agreement however, it is possible to waive inheritance rights.
"What if my will doesn't give my spouse anything?" you may ask. North Carolina law and public policy prevent one spouse from disinheriting the other entirely. In other words, even if the deceased's will gives his or her spouse nothing, the surviving spouse still has a right to a share of the estate.
To summarize, absent a separation agreement, one spouse may inherit money or property from the other whether or not the spouses have separated and whether or not the deceased spouse has a will. Prior to divorce, the best, and often the only way to alter the disposition of property at death is through a separation agreement.