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Publications | February 18, 2019
1 minute read

Surviving Spouse: Till Death Do Us Part — Or Not

When a deceased person has assets that require a court proceeding to administer (aka “probate”), a surviving spouse has certain rights in the estate assets. But, what if the couple wasn’t living together anymore when the spouse died? What if the couple acted as though they were essentially divorced? 

The Erwin case from 2018 explored these issues, and held that each marital situation must be evaluated on a case-by-case basis to determine if the surviving spouse will in fact be treated as a spouse under estate laws.  

Erwin concluded that a surviving spouse will be considered “willfully absent” from the marriage, and as a result not a spouse for the deceased person’s estate, if: (1) the surviving spouse intended to be absent from the deceased spouse for one year or more before death; and (2) there was a complete physical absence and emotional absence between the spouses for one year or more before death (resulting in a practical end to the marriage). Estate administration can get complicated; we can help.