Do I Need a Health Care Directive?

“If you want to make sure someone other than your estranged spouse is able to plan your funeral, you need to have a new Health Care Directive put in place.”

Kate Spade and Anthony Bourdain were both separated from their spouses at the time of their deaths. Although it’s believed that these separations were amicable, the couples still weren’t legally divorced. This can make for some interesting estate planning issues.

Forbes’s recent article, “Kate Spade, Anthony Bourdain And Estate Planning When You Are Separated” explains that when spouses decide to divorce, it’s usually a legal process. However, it’s becoming more common for spouses to remain permanently separated but not divorced. This is a gray area for both family law and estate law, where many don’t realize the legal implications.

Although the details of Kate Spade’s separation aren’t known, Bourdain’s separation from his second wife are, and his situation is a common one. He and his estranged spouse were together for years, but their work and other commitments caused them to move in separate directions. They had one child, whom they wanted to co-parent together.

However, with his untimely death, it brings up an odd result: his estranged spouse is his beneficiary.  She will also be the owner of his legacy. In terms of immediate issues, she controls his remains and his funeral. Bourdain’s mother told the media that she was unsure of funeral plans with his estranged spouse still legally his next of kin. She said, “Although they are separated, she’ll be in charge of whatever happens.”

While this might be okay for the Bourdain family, in the event you consider a permanent separation, it may be wise to consider the pros and cons of an estranged spouse’s rights. When you get married, spouses are given rights previously unavailable to them in their single status with their partner.  Separation doesn’t mean your spousal rights are immediately wiped out. Only a final divorce decree can fully terminate spousal rights. If there’s a death prior to a divorce, in most situations the surviving spouse will have legal control.

Even if the separation is amicable, there are a few things to consider. Make sure someone other than your estranged spouse is able to plan your funeral. To do that, you need to have a new Health Care Directive put in place. That’s a legal document, in which a person specifies what actions should be taken for their health, if they’re unable to make those decisions. It also address the disposition of the body in the event of death. Include your funeral plans in your health care directive and make sure the relevant people have copies of it, especially when there is a separation. In contrast to changing beneficiary designations or your estate plan in a divorce proceeding, you can make a new directive, and you aren’t required to name your spouse.

If you make a change, alert the key people. You and your estranged spouse should consider all the areas where spousal rights exist. It should be part of your planning process as you work through separation issues. Be sure your family law attorney and estate planning attorney also communicate with each other.

Reference: Forbes (June 12, 2018) “Kate Spade, Anthony Bourdain And Estate Planning When You Are Separated”