Estate Laws for a Legal Separation in Alabama

by Bernadette A. Safrath

Legal separation is an alternative to divorce in which an Alabama court can divide property, decide custody and award alimony and child support without terminating the marriage. There are two aspects of estate law that are important in relation to legal separation. The first is during the legal separation proceeding when the court divides the marital estate. The second is when one spouse dies and his estate is divided among his beneficiaries.

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The Marital Estate

When spouses choose to live apart or if their marriage becomes "irretrievably broken," an Alabama court can issue a decree of legal separation. Part of that decree is a settlement of the marital estate in which the court will divide the spouses' property between them. Alabama is an "equitable distribution" state. This means that the court will award a fair percentage of the assets to each spouse. The factors a court examines when dividing the marital estate include the value of the property, each spouse's income, each spouse's age and health, the length of the marriage and each spouse's role in acquiring the marital estate.

Right of Election

Without a formal waiver, a surviving spouse is entitled to inherit from the deceased spouse's estate. This means that if a decedent did not specifically bequeath a portion of the estate to his wife in a will or only left her only a nominal bequest, she is entitled to seek her "elective share." Alabama law sets the elective share at one-third of the value of the entire estate.

Intestacy

Because legal separation does not terminate a marriage, a surviving spouse is entitled to a share of the decedent's estate when he dies without a will, known as dying intestate. The Alabama Code sets forth that a surviving spouse will inherit the entire estate if the decedent was not survived by his parents or children. If the decedent had children, the spouse's intestate share is $50,000 plus one-half of the remaining estate. If there are no children, but the decedent's parents are alive to inherit, the spouse's share of the intestate estate is $100,000 plus one-half of the balance.

Waiver

Spouses have the right to inherit from each other's estates. Because a marriage is not ended by a legal separation decree, a surviving spouse will still have the right to inherit from a spouse's will, through right of election or by intestacy. However, Alabama's legal separation law states that spouses can agree to waive their rights to the other's estate. This waiver must be in writing and included in the separation decree. Upon waiver, a spouse relinquishes all inheritance claims and is not entitled to a bequest from a will and cannot claim an elective share or intestate share of the estate.