So you have decided to resolve your marital issues in a Separation Agreement. Separation Agreements are contracts, contracts contain clauses and the clauses are negotiable and important. You should definitely be heavily involved with the attorney drafting your Agreement, and you should ask questions until you understand the legal effect of every single clause in your Separation Agreement. One fairly common clause in a Separation Agreement is the “Waiver of Estate” clause. Basically, the Estate Waiver clause works like this: you and your spouse agree that, in the event that one of you dies prior to the divorce being granted, neither one of you will inherit anything from the other’s estate. In North Carolina, this can be an important clause, because there is a mandatory one-year separation period required before either party can file for divorce. After filing, it generally takes about 2 months to finalize a divorce, so there can sometimes be a gap of 14 months or longer between the date of separation and the date of divorce. 14 months is a long time, and a lot can happen. Though we don’t like to think about the possibility of death, unfortunately the possibility is real, and in the divorce context, death prior to divorce does impact the division of property. Specifically, if you die prior to your divorce being finalized, your spouse is entitled to a certain percentage of your property, whether you have a will or not. However, if you have a clause in your Separation Agreement in which you and your spouse waive the right to take from the other’s estate, you can insulate yourself from the unwanted effects of North Carolina’s inheritance laws during the period of separation.
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