What Happens if a Spouse Dies Before the Divorce Papers Are Signed?

By Beverly Bird

Contrary to what many people believe, your spouse doesn’t have to sign your divorce papers for the court to grant your divorce. All states recognize no-fault grounds, which means you don’t need your spouse’s agreement or signature. A judge signs your decree, officially terminating your marriage. However, if one of you dies before this occurs, the situation can become very complicated.

Contrary to what many people believe, your spouse doesn’t have to sign your divorce papers for the court to grant your divorce. All states recognize no-fault grounds, which means you don’t need your spouse’s agreement or signature. A judge signs your decree, officially terminating your marriage. However, if one of you dies before this occurs, the situation can become very complicated.

Effect on Divorce Proceedings

Most states won't actually grant a pending divorce after the death of one spouse. In one sense, there’s no need for a divorce decree. The marriage has ended by death. However, even though they can no longer grant a divorce, some states, such as Pennsylvania, retain jurisdiction over marital property after a divorce action has been filed. This means the court still has the right to decide the terms of property settlement. The judge will divide marital assets and debts between the living spouse and the decedent’s estate according to the state's family law code. In other states, such as California and New Jersey, divorce courts lose jurisdiction over the marital estate if one spouse dies after filing for divorce. In these states, the probate courts take over to determine what becomes of marital property.

Divorce is never easy, but we can help. Learn More

The Decedent’s Non-Probate Assets

All states distinguish between probate and non-probate assets when a person dies. Non-probate assets are those that pass directly to a named beneficiary by contract, so probate isn’t necessary to achieve transfer of title. For example, life insurance death benefits and retirement plans usually have named beneficiaries. If the probate court is deciding the disposition of your marital estate, it generally has no control over these assets. They go to the named beneficiaries, regardless of your divorce plans. If your spouse named you and neglected to change her designation when you filed for divorce, you’ll usually still inherit.

The Decedent’s Probate Estate

The rest of the deceased spouse's estate will probably pass through probate, unless she created a trust. If she created a trust to distribute her assets after her death, the terms of the trust documents would also bypass probate and would probably prevail. Assuming she did not create a trust, and if your state's divorce court transfers jurisdiction to the probate court when she dies, you will usually inherit your spouse's probate assets according to your state's probate laws. If she neglected to write you out of her will when you began divorce proceedings, you will inherit from her until your divorce is final. If she dies without a will, you will usually inherit according to your state’s laws of intestate succession. Surviving spouses inherit at least a portion of the estate by laws of intestate succession in all jurisdictions.

Precautions

Before you file for divorce, speak with both an estate attorney and a divorce attorney so you have a clear understanding of your state’s laws if one of you should die before your divorce is final. In some states, such as New Jersey, your spouse can write you out of her will, provided your divorce is pending. The fact that one of you has filed for divorce prevents you from making any attempt to contest the terms of her will by claiming an elective share instead. An elective share is a percentage of her estate, usually one-third to one-half, that you can choose to accept rather than abide by the terms of the will. However, not all states bar spouses from elective shares before their divorce is final.

Divorce is never easy, but we can help. Learn More
How Is a Will Affected by Multiple Marriages?

References

Related articles

West Virginia State Laws on Spouse Inheritance

In West Virginia, your spouse can inherit from you under the terms of your will or by laws that govern inheritance. Although some of these provisions are automatic -- for example, you cannot disinherit your spouse -- crafting an estate plan can help ensure your assets are distributed as you wish, without any unintended consequences.

Rules for Wills After Divorce in Ohio

Your will tells your loved ones how to distribute your property after death, and it can also appoint guardians for your minor children or set up a trust for your beneficiaries. Since your wishes can change over time, you might change your will several times, particularly after important life events, such as divorce or marriage. However, if you forget to change your will, Ohio law will step in to change it for you, depending on the circumstances.

Who Are Heirs to a Last Will & Testament?

The term “heir” is often confused with “beneficiary” when, in fact, definitions of the two differ. Heirs are individuals who inherit from an estate because they are family members of the deceased, not because they were named as a beneficiary in the deceased’s will. In fact, the deceased may not have left a will at all.

Get Divorced Online

Related articles

Pennsylvania Inheritance Laws for Spouses

Every state but Georgia protects a spouse’s right to inherit when her partner dies. In Pennsylvania, the law does ...

What Effect Does a Divorce Have on a Will in Georgia?

Georgia is the only state, as of 2010, to allow a testator, or the person making a will, to disinherit a spouse. This ...

Does a Will Supersede Spousal Rights?

Generally, a person’s will governs the distribution of his assets when he dies. However, some rules apply to ...

Beneficiary Disqualification From a Will

It usually requires a pretty significant event to disqualify a beneficiary from inheriting under the terms of a last ...

Browse by category
Ready to Begin? GET STARTED