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When Your Spouse Passes Away During Divorce Proceedings
Life is unpredictable. For most of us, we don’t get married expecting to one day have to file for a divorce. We don’t imagine when we have children that we’ll one day have to pay alimony and have joint custody. We don’t see these things coming – we just do the best we can in the moment.
And sometimes, life can get even more complicated than that. It’s not uncommon, in America and the rest of the world, that one spouse will die at some point during divorce proceedings. These things can take time, and people of different ages are at different risks of many sudden onset diseases, not to mention accidents or acts of God.
But what happens when your spouse dies while you are in the middle of a divorce? Does the divorce go on? What are your legal rights against their living heirs, both in terms of inheritance and the passing along of your spouse’s debts?
Let’s take a closer look.
What Happens First? Divorce Proceedings Stop
A divorce takes two people to carry out. What this means is that, legally, when your spouse dies, the courts will stop the divorce in its tracks. Even in cases where you’ve already negotiated the terms of your divorce, if one party passes away, the divorce cannot continue along its original path. Any almost-final provisions are not enforced unless a judge signs off on them and the Notice of Access to Sentence is issued.
At this point, you are not a divorcee.
The Impact Of The Death On The Terms
So we’ve established that the divorce process stops as soon as a spouse dies. But what does that mean for your property, child custody, and outstanding finances, both debts and remaining money? Well, there are a few things to consider:
Assignment of Property
Community of property still applies if your spouse passed away during the divorce proceedings. This means you’ll inherit any properties held in this regard, as well as their separate properties. The only exception to this rule, obviously, is if there was a Last Will that specified otherwise.
In the event that your spouse dies, you will become 100% responsible for any outstanding matrimonial debt you and they had during your marriage. If your name is on any contracts, deeds, leases, or joint debts of any kind, you are now the only remaining person capable of closing those debts out, and you are officially responsible for them.
As the last remaining parent of your child, you will now be legally responsible for their custody. In the state of Florida, grandparents may petition for legal custody in this instance, but under specific conditions. Essentially, the surviving parent has to have been convicted of a violent felony and displayed behavior that would present a substantial risk to the child’s wellbeing.
In the event that you had negotiated alimony payments as part of your divorce, you will no longer be able to receive those as your spouse is no longer able to make payments. How many people manage this is in taking ownership of their spouse’s assets, often in the form of retirement funds and any death benefit paid by the spouse’s employer. This can help to offset the unexpected financial support you should have received, had your spouse been able to make payments.
Death and Divorce Proceedings: Final Thoughts
Losing a loved one can be extremely difficult, and having it happen during a divorce only adds to the confusion. As a last thought, if your spouse was killed in an accident, you may want to look into filing a wrongful death case, if appropriate. This is a strange silver lining, but if your spouse passed away before the divorce was finalized, you’re still considered a current spouse. You wouldn’t have been, otherwise, so this may be a good opportunity to claim some sort of compensation for your loss.
Are you currently considering a divorce? If so, check out our family law, mediation, and collaborative divorce services to find out how we can help.