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

By River Braun, J.D.

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

By River Braun, J.D.

If a spouse passes away during the divorce process, the court may dismiss the case or transfer jurisdiction of some of the matters to another court. While you can file for divorce without your spouse's consent, you cannot do so if they are deceased.

Woman looking concerned while speaking on a cellphone

Possible Changes in Jurisdiction

In most cases, the court does not grant a divorce after a spouse passes away. Because a marriage ends when one spouse passes away, a divorce is not necessary. The survivor is a widow or widower.

In a few states, the family court retains jurisdiction of the case to divide marital property between the surviving spouse and the deceased spouse's heirs according to the state's family laws. However, in other states, the probate court assumes jurisdiction of the matter to handle the deceased spouse's estate. A person's will or the state's laws dictate who inherits their property.

Because the divorce did not occur, the surviving spouse may inherit property from the deceased spouse's estate. In many states, the surviving spouse receives all or a majority of the property if there was no will. In a few states, they may inherit a portion of the estate even if the deceased person attempted to disinherit them through a will.

Assets that pass directly to heirs outside of probate are not subject to a spouse's interest. For instance, life insurance policies, retirement accounts, and property held in trust pass directly to the named beneficiaries without going through the probate process.

Child Custody and Visitation Issues

If a spouse passes during a divorce proceeding, the surviving parent obtains sole custody of the minor children. Visitation and child support issues also become moot because the other parent has passed away. Any visitation with the deceased spouse's family members is at the sole discretion of the surviving parent. However, some states permit grandparents to petition the court for visitation. Other family members may or may not have legal standing to request visitation with minor children after a relative passes away.

For the surviving parent to lose custody, another party would need to file an action with the court alleging that they are unfit. For instance, if the child is being abused or neglected, the child's grandparents or other family members may file an action to obtain custody. In some cases, the state may file an action to remove the child from the home and place the child in foster care or with other family members.

If a spouse dies during a divorce proceeding, it is crucial for the surviving spouse to research applicable state laws. Because family laws and probate laws can vary greatly from state to state, it is vital that a spouse learn how their state's laws address issues related to the divorce, property division, and marital debts as soon as possible. Custody is typically not an issue unless someone alleges neglect or abuse, but the financial matters related to probate could have a significant impact on the person's short-term and long-term financial stability and goals.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.