Physical separation is one factor in establishing the end of the economic marital community, the other is that at least one spouse must not intend to resume the marital relationship. This date may be subject to controversy. Property acquired after this date can no longer automatically become community property.
Legal separation is a very different concept from physical separation. It must not be confused with a bifurcated divorce (illustration Kim Kardashian v Kanye West), which grants the dissolution of a marriage before all of the other aspects of a divorce are finalized. In contrast, a judgment of legal separation is a voluntary remedy to which both spouses have consented. It separates their marital property rights without severing their marital status. The spouses may retain some of the benefits of the marital status as shown in the following table.
Normally, any nonprobate transfer of an IRA or other retirement account, transfer on death and pay on death designations (TODs and PODs, etc.) executed before or during the marriage is automatically revoked upon the entry of a judgment of dissolution. Legal separation stops short of full marital dissolution. Therefore, these transfers do not automatically fail by operation of law if the spouses are legally separated.
The following table illustrates the status of a legally separated spouse.
| Can a separated spouse be a surviving spouse? | No, see CA Probate Code 78(d) | A separated spouse cannot inherit from their intestate spouse. |
| Does a separated spouse need to fear automatic failure of non-probate transfers at the time of death of the other spouse? | No, see CA Probate Code 5040(a) | No benefits such as temporary use of family home, establishment of probate homestead, grant of family allowance. |
| Are joint tenancies severed as to the deceased spouses’s interest? | No, see CA Probate Code 5042 | Joint tenancies are associated with special rights that are not available to tenancies in common. |
| Does a separated spouse need to fear automatic revocation of appointments and dispositions in a prior will of the decedent spouse? | No, see CA Probate Code 6122(d) | A decree of legal separation which does not terminate the status of spouses is not a dissolution for purposes of section 6122. |
| Can a surviving separated spouse receive pension benefits from the decedent? | Case Law. | Irvin v. Contra Costa County Employees’ Retirement Association Board |
