Is an Ex-Spouse a Surviving Spouse?

The simple answer to this is “no.” To be a surviving spouse, the spouse had to be married to the decedent at the time of death. What about separated? Then the answer is “yes.” If a separation agreement, formed by the spouses and decreed by a court, does not formally terminate the status of “husband” and “wife,” then the separated spouse is still considered a surviving spouse.

Even if a divorce decree or annulment between an ex-spouse and the decedent is not recognized in the decedent’s state of domicile, an ex-spouse is not a surviving spouse for probate purposes when:

1.  the person and decedent neither lived together nor had a subsequent marriage ceremony;

2. the ex-spouse marries a third person; or

3. the person participated in a valid proceeding concluded by an order purporting to terminate all marital/community property rights.


Image by: Mandy Jansen