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Estranged Spouse Still Gets Death Benefit

(File photo: Joe Raedle/ Getty Images)

(File photo: Joe Raedle/ Getty Images)

feldman_amy Amy Feldman
Amy E. Feldman is a business commentator and legal business...
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By Amy E. Feldman

PHILADELPHIA (CBS) – It’s wedding season. Not feeling the love? How do you cut your spouse out of your will?

In his 80 plus years of making movies, Mickey Rooney undoubtedly played no more dramatic a role than his real life, and the drama still hasn’t ended.

His estranged wife is now fighting his will, which he signed only a few weeks before his death, in which he left her nothing. Here’s the thing about this dramatic ending: it might have a twist that he didn’t know. Because under the law, a husband or wife has automatic rights to collect money even if her spouse specifically leaves her out of the will.

In addition to property that is in joint names like a house or other assets, unless the spouses came to a prenuptial agreement or a separation agreement in which they specifically agree to waive their rights to collect from the other’s estate, a spouse – even a separated one, has a right to collect between a third and a half of the estate depending on how many children they have together.

So, if you want to ensure that your current spouse gets NOTHING from your estate, come to an agreement or get a decree ahead of time because, unlike the movie The Human Comedy in which Rooney starred, the battle over the estate will be nothing but tragic.

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