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What Happens If My Spouse Dies During Our Divorce?

Divorces can take a long time.  Some divorces take years.  During that time disease or an accident can strike where one party to the divorce dies.  What happens to the divorce when a spouse dies?

In most states, the divorce action simply gets dismissed when one spouse dies.  Most of the issues in a divorce automatically resolve themselves after the death of a party.

You cannot pay alimony or child support to a dead person.  A dead person cannot pay alimony or child support to you.

All of the marital property that was held in both parties’ names or possession now becomes the property of the surviving spouse.  This usually means a marital home where both parties names were on the deed.  For homes where both parties have their name on the deed, the property automatically gets transferred to full ownership by the surviving spouse.

All of the debts of the deceased spouse are either forgotten or the deceased’s estate pays those debts through the probate process.

If the deceased spouse has non-marital property in their name or possession, that property will subsequently be distributed via the deceased person’s will if they have one.

Often, divorcing parties will remove their soon-to-be ex-spouses out of their wills.  This will indeed deny the soon-to-be-ex-spouse any non-marital property…to an extent.

Most states have something called an intestate spouse law whereby the spouse of a deceased person can choose to renounce their deceased spouse’s will and instead collect their elective spousal share. In Florida, that elective spousal share is 30%.  In Illinois, that elective spousal share is 33% if the deceased has children and 50% if the deceased had no children.

So, when a spouse renounces a will, they can instead total the value of the estate and receive a certain percentage of that value based on their state’s laws.  Typically, this is done by selling the items in the deceased spouse’s estate.  The surviving spouse does not get to pick and choose the items they want that add up to the value of the spousal share. 

If a deceased spouse did not leave a will then the deceased is said to have died “intestate.” Dying intestate means the state the deceased is a resident of will essentially write the deceased a will based on local law.

Most states say that if the intestate deceased died with no surviving children or grandchildren, then the spouse gets everything. 

If the intestate spouse has children or grandchildren, the spouse usually gets 50% of the estate and the children get equal shares of the remaining 50%.

Every state has different laws on how to handle intestate inheritances. 

To avoid being forced to give a spousal share to a soon-to-be-ex-spouse, divorcing parties fearing death will ask the court for a bifurcated divorce.  A bifurcated divorce grants the divorce but reserves the division of any marital assets. 

So, if a party to a divorce case dies after a bifurcated divorce, the now-ex-spouse cannot ask for his or her spousal share of non-marital property.  The marital property can still be divided in divorce court but representatives of the deceased’s estate will step in for the deceased as the reserved matters get resolved. 

There is little a spouse can do to preserve their spousal share of a non-marital asset if the opposing side has good cause to ask for a bifurcated divorce (proof that they may die before the divorce can be completed in a normal time frame).  A spouse may, however, ask for an injunction from the court to keep a dying spouse from dissipating any assets, marital or otherwise. 

Specifically, a spouse can ask the court to preserve any life insurance policies as they exist currently.  Especially life insurance policies where the spouse is the beneficiary. 

Russell Knight is a Naples Florida family law attorney.

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