How to Separate

“I’d like to get legally separated.”

Floridians transplanted from certain other states often ask about this.

Florida doesn’t have a procedure to become “legally separated”. Florida spouses who are in fact living separately and apart remain legally married, without a change in legal status.

Therefore, in Florida, if a separated spouse dies, the surviving legal spouse still has full inheritance rights if there is no will. The surviving legal spouse also has certain inheritance rights even if the deceased spouse disinherited the surviving legal spouse in his or her will. Living separately and apart has no impact on the surviving legal spouse’s legal rights.

Physically separated spouses in Florida can, however, in effect, get the benefits of “legal separation” by, among other things, legally “opting out” of Florida’s laws regarding property distribution to spouses. They can do that by making what is called a post-nuptial agreement. (Of course, the agreement must comply with all applicable legal requirements in Florida.)

A “separation agreement” is nothing more than a post-nuptial agreement. If the parties later decide to divorce, the post-nup can serve as a settlement agreement. If one spouse should die before a divorce, the post-nup can also limit the surviving spouse’s rights to the deceased spouse’s estate.