Death During A Divorce: What Happens

If a spouse dies during a divorce case the general rule is that the case is finished. There are some exceptions to the general rule but for most circumstances the court when presented with a death certificate will mark the case as concluded. The legal phrase is that the case is "abated by death". At that point there will be no more court conferences, trial, further discovery, custody disputes and child support and maintenance obligations since all proceedings are ended.

The parties will never be divorced, however there may still be some possible claims against the estate of the deceased if there are judgments that are unpaid or other payments past due that were never made.

If the clients have fully concluded a trial or have signed their settlement agreement and grounds for divorce were consented to, the court may enter the final judgment of divorce if the act is "ministerial" meaning that it is essentially the processing of paper work by the clerk of the court and the documents were already submitted prior to the death and could have been signed previously.

If the case is finished because of the death of a spouse, the surviving spouse has all of the rights that existed as if there had been no divorce including the rights of inheritance, rights to property held jointly and the rights to be the surviving beneficiary of assets.

Recently a case was decided that even where a party had violated the "automatic orders" which issue at the beginning of a divorce case, the court lacked authority to enforce the automatic orders upon the "abatement" of the case. The result was that where the deceased person had changed beneficiaries of life insurance to remove the spouse, the court determined that because the case was over they could not issue an order to correct the beneficiary back to the spouse. I personally believe that if appealed that decision may be reversed for many reasons.

If you find yourself in this unusual circumstance you should promptly obtain a consultation with my office to determine if your rights need further protection.