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.

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.

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.

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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.

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Does a Will Supersede Spousal Rights?

References

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Virginia Laws on Willed Property in Divorce

Getting a divorce in Virginia brings up a lot of issues surrounding wills and estates, particularly if one spouse passes away while the divorce is pending. Generally, assets a spouse inherited under a will are not impacted by a divorce. However, Virginia law provides that spouses must receive a certain portion of the deceased spouse's estate, even if the marriage is headed for divorce.

Last Will & Testament in a Divorce

Although estate laws vary somewhat from state to state, they generally protect spouses from being completely disinherited or forgotten in a will. However, they do not normally address what might be fair in a divorce situation. There is a window of time during the breakup of a marriage when a soon-to-be ex-spouse can inherit everything you own if you pass away.

Wills in Virginia

Writing a will allows you to decide before your death who is going to get your assets, who is going to oversee the process of transferring them to those people and who will be the guardian of your minor children after your death, if you have any. To a great extent, you take the power of these decisions away from the court. Laws regarding wills vary from state to state. Title 64.1 of the Code of Virginia lists the state's requirements and provisions for wills and estate matters.

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