What Happens When A Spouse Dies During A Divorce?

Posted on: 4 December 2015

It's not unusual for separating spouses to wish the other person would just drop dead, especially if the divorce is acrimonious. What would happen, though, if one spouse actually did die during the proceedings? While it may immediately resolve some issues such as child custody, the death of a spouse could complicate other matters. Here's what you need to know to be prepared if your spouse dies during your separation.

Family Court vs. Probate Court

Whether your divorce will continue in family court or be passed along to probate court depends on how far along your divorce was, where you live, and if the decedent had a will. In some states, such as New Jersey, your divorce case ends as soon as the court is notified about the person's death and probate court will distribute assets according to the person's will. If there is no will, then you will inherit all of the individual's assets excluding any assets that are marked for others (e.g. life insurance policy).

Even if the person created a will that excludes you from getting any of the individual's assets, many states don't allow people to leave surviving spouses with nothing. You would need to challenge the will in probate court, but the court will generally award you some of the decedent's assets in this type of situation.

In other states, such as Pennsylvania, the divorce will continue if grounds for the separation were established or you were close to getting a divorce. For instance, if you were parting from your spouse because of adultery and you've provided evidence to the court that your spouse cheated on you, then the divorce will proceed as normal. It may also continue if you and your ex had already worked out the terms of the divorce and all that was needed was the approval of the court. If this is the case, then the property will be separated according to the laws of your state.

It's important to be aware that being the automatic heir to your spouse's assets doesn't mean you'll get everything. If your spouse changes the beneficiary of insurance policies or similar assets, then those people will typically be given the money owed. For example, a Kansas Supreme Court determined that an ex-husband had no right to money from an insurance policy that was given to his ex-wife's parents after she died, even though she had changed the name of the beneficiary on the policy during the divorce and the policy premiums were being paid from a joint checking account.

The only way to prevent this type of situation from occurring is to file a restraining order or injunction against your soon-to-be ex-spouse to prevent the person from making any changes to this type of asset until the divorce concludes.

Spousal Support Ends But Child Support May Continue

Spousal support orders, temporary or otherwise, end once the trustee notifies the court the payee is deceased. The only time spousal support would continue is if you and your deceased spouse agreed his or her estate would continue paying after death. However, this type of stipulation generally only appears in a divorce decree; so if you and your spouse hadn't gotten that far in your separation, then your alimony will end.

On the other hand, surprisingly, a parent's child support obligation doesn't always end with his or her death. Although you may not continue receiving monthly payments, you may be entitled to the balance of what's owed plus any arrearages, which you can collect from the decedent's estate. For instance, if you have a 12-year-old child and the age of majority is 18 in your state, then you may be able to collect the 6 years worth of child support payments owing from your soon-to-be ex's estate.

This is only true, though, if the court continues with the divorce proceedings. If your case is dismissed or moved to probate court, then you and your children will receive your inheritance according to the person's will or decisions made by the probate court.

Having a spouse die during a divorce can be heartbreaking and add a layer of complexity to your separation. It's essential to consult with a divorce attorney, such as those at the Law Office of Jeffrey Dragon , to protect your interests if this unfortunate even occurs.