Death During Divorce

by Apr 15, 2022Divorce

What happens if you’re in the middle of a divorce and the other person dies before it’s final? It’s not as uncommon as you might think, but fortunately there are steps you can take to protect yourself in the event it happens to you.

What happens next?

  • The divorce case: You can’t divorce a person who is deceased. In other words, if one of the parties to a divorce die, the divorce case dies, too. The divorce will be dismissed, and the surviving spouse will become a widow or widower.
  • Assets and property: There are three potential scenarios for the disbursement of the deceased’s personal property.
  • Anything that was already designated to transfer on death to a beneficiary will transfer.
  • Did the deceased have a will? If so, the Probate Court judge will review the will and the executor of the estate will make sure assets are distributed in accordance with the wishes of the deceased party.
  • If there was no will, the surviving spouse would inherit the estate.
  • Debt: If you were jointly responsible for the debt when your spouse was alive, you’re still responsible for it. A good example of this might be a HELOC (Home Equity Line of Credit) on your house or a joint credit card. If your partner held any debts in their name alone, you are off the hook as far as personal liability goes. However, creditors may make claims against the estate, and they will be paid before the assets are distributed to the beneficiaries.
  • Contact a lawyer- If your spouse dies during the pendency of a divorce, your next call should be to an experienced probate attorney.  They can direct you to what steps to take next.
Divorce Death

Support Payments

If you were receiving temporary spousal or child support while the divorce was pending, that will stop immediately. A person’s obligation to pay dies when they do. 

If you were counting on that support to make ends meet, you will want to ensure that you have remained as the beneficiary of your spouse’s life insurance policy if they have one. Most couples list their spouse as their beneficiary on their 401k, IRA, pension plan or other retirement account, as well as their life insurance policy. However, if you are going through a divorce, your partner will likely change beneficiaries at some point. When they make the change is crucial to you.

A savvy divorce lawyer will advise you to file a restraining order at the beginning of the divorce proceedings.  The restraining order will prohibit your spouse from, among other things, changing any beneficiaries until the divorce is final. Without that order, your partner could change beneficiaries the day you separate, and you could be left with no source of support upon his/her death.

Get the advice you need

If you haven’t thought about what would happen to you if your spouse died during the divorce, you’re not alone…but what other scenarios haven’t you considered? The experienced divorce attorneys at Kirkland & Sommers can help prepare you for all the difficulties of a divorce and make sure you are protected from things like sudden beneficiary changes. With more than 100+ years of combined experience in family law, they have the knowledge and expertise you need and will work to make sure you get a fair and just settlement.

Consultations are always free

Don’t take chances on the unknown…schedule your free consultation to meet with one of our experienced divorce lawyers today!