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When Death and Divorce Collide


The complications of divorce are well-known and present, to some degree, in every divorce proceeding. Adding in other obstacles is almost guaranteed to make resolving divorce issues a laborious process. With the increase of divorce among older couples, an occurrence that was once a rarity is now more likely to interrupt the divorce process – death of a spouse while the case is still pending. The death of any party to a lawsuit is unfortunate and leads to a number of legal complications, some of which cannot be overcome or addressed. The rights of a spouse versus an ex-spouse are quite different, and this line of demarcation can quickly become blurry if divorce and death collide. Issues of inheritance and available spousal benefits are impacted if a spouse dies before the divorce is finalized, and a discussion of how this event influences the resolution of a divorce petition will follow below.

General Effect of Death on Disposition of the Divorce Case

The overarching point of divorce is to terminate a marriage. Thus, if a spouse dies before that process is complete, the case dies and is dismissed, as it is not generally possible to substitute a party in divorce cases. However, the death effectively produces the same result – the termination of the union. The difference between divorce and death, though, lay in how the deceased spouse’s property is divided. If there is no divorce settlement in place, the deceased spouse’s estate will be settled as if the divorce action was never filed, i.e., the surviving spouse will receive all the assets and benefits allowed under probate law, which is a substantial amount. Normally, a divorce would terminate this right to inheritance, so the absence of a divorce decree can greatly affect the assets available to other family members.

Further, if a settlement agreement was drafted, but lacks concrete detail, courts will typically view these documents as provisional and not the final word on the divorce. As a result, the terms will not be enforced or control how the marital estate will be handled. Obviously, if a divorce is pending, the deceased spouse would not want the other spouse to receive property as if the divorce was not intended. To avoid this outcome, any settlement agreement should be as detailed and complete as possible, so a judge will perceive it as being the parties’ final wishes as to how the issues of divorce should be resolved.

When Death Is Anticipated

In some marriages headed for divorce, the imminent death of one spouse is known, a fact that structures how the case should be approached. Divorces take time regardless of how much agreement there is between spouses, and any amount of dispute will only add to the time it takes before the process is concluded. Consequently, if death is anticipated, the best course of action is to file a motion to bifurcate the case, which allows the court to issue a divorce decree but reserve the resolution of property division for a later time, a step courts are willing to take if death is expected. If death occurs before the property issue is resolved, the former spouse can bring the deceased spouse’s estate into the case to resolve the division of marital property, an issue that does not die with the deceased in these circumstances. Florida appeals courts have ruled that family law courts retain jurisdiction to settle the division of marital property before the probate case can proceed. The death of a spouse during a pending a divorce creates a number of complicated legal questions, and an experienced attorney should be consulted about how to proceed in this situation.

Speak to a Divorce Attorney

The outcome of a divorce hinges on the unique circumstances of each couple, and few situations are as a unique as having a spouse die in the middle of divorce. If you have concerns about the resolution of your divorce case, talk to the experienced attorneys at Donna Hung Law Group today. Uncertainty in such an important event is dangerous and unnecessary. The Orlando attorneys at Donna Hung Law Group can guide you to a fair resolution. Contact us at (407) 999-0099 for a consultation today.