What Happens if a Spouse Dies before the Divorce is Final?

If a spouse dies during the divorce process, what happens next? Here are answers to some common questions people in that situation have asked.

What happens next?

If a spouse dies in the middle of a divorce case, the divorce proceedings will be terminated. Under the laws of intestacy of the state, the surviving spouse will typically inherit all property, money, or other marital assets that would have gone to the decedent in the divorce settlement. 

Are there exceptions to this rule?

Yes. If the deceased spouse had a will that they updated during the divorce proceedings, the will should override the state's intestacy rules. This means that the deceased spouse's wishes for asset and property distribution will be upheld.

A caveat to note, however, is that some states don't allow a spouse to disinherit another spouse. Because divorce proceedings have stopped and the spouse died while legally married, some states provide for a marital share. That is, the surviving spouse would be entitled to a share of the deceased spouse's estate, regardless of the updated will.

Read: What Is a Trust, and How Can It Protect You and Your Loved Ones?

Who is considered the next of kin?

The next of kin of the deceased spouse could include their children, parents, or other relatives, depending on the circumstances. The state laws where the deceased spouse lived would determine who is considered the next of kin. For example, in California, the issue would be taken before a probate court to decide.

As noted above, however, the surviving spouse may be entitled to the entirety of the deceased spouse's estate because they were still legally married. This could eliminate any next of kin receiving a share of the estate.

What sort of inheritance rights does the living spouse have?

Inheritance laws vary based on the state in which the deceased spouse lived at the time of their death. 

In general, if a spouse dies before a divorce is finalized, the surviving spouse may be entitled to inherit the deceased spouse's property, or a portion of it, depending on the couple's individual circumstances and the laws of the state.

Again, if the deceased spouse had updated their will, the people listed in it may be entitled to inherit assets and marital property based on that. And again, it depends on the laws of the state.

Does division of property stop?

Yes. The property division process stops if one spouse dies and the divorce has not yet been finalized. This is true even if agreements had been made between the spouses and drafted into a marital settlement agreement. Because a judge had not yet signed off on the agreement, all property and debt reverts to the surviving spouse.

Does the living spouse inherit debt, too?

If the spouses had been separated for some time and the deceased spouse had taken out new credit cards or other debts in their name, the surviving spouse may be able to escape liability for those debts. However, this may require some diligence on the surviving spouse's part.

What happens to any tentative custody agreements?

Child support and custody will also depend on the couple's specific situation. If children were involved and custody had already been determined, custody would likely go to the surviving parent.

If the child was going to live with the deceased spouse, child custody would depend on the laws of the state where the deceased spouse lived at the time of their death. It would also depend on the terms of the child support order.

What about tentative child support arrangements?

If a child support order was established before the spouse's death, the surviving parent may still be entitled to receive support, even if the child was going to live primarily with the deceased. However, if a child support order was not yet established, or if it did not contemplate the spouse's death, the surviving parent may need to file a petition with the court to modify the child support order.

If a spouse had been counting on receiving child support and is now unable to do so due to the death of the other parent, they may have legal options available to them. For example, the surviving parent may be able to seek help through their state's Department of Human Services or a family law attorney to modify the child support order, which could include seeking support from the deceased spouse's estate or transferring existing child support payments from the deceased spouse to the surviving parent. 

The surviving parent may also be entitled to other forms of financial assistance or public benefits, such as Temporary Assistance to Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), or Social Security survivor benefits for the child.

Do you need help?

While unique, the situation explored above is not unheard of. At Hello Divorce, we offer legal coaching sessions during which you can get your questions answered by a licensed attorney. Schedule a free 15-minute call to find out how we can support you.

Divorce Content Specialist & Lawyer
Divorce Strategy, Divorce Process, Legal Insights

Bryan is a non-practicing lawyer, HR consultant, and legal content writer. With nearly 20 years of experience in the legal field, he has a deep understanding of family and employment laws. His goal is to provide readers with clear and accessible information about the law, and to help people succeed by providing them with the knowledge and tools they need to navigate the legal landscape. Bryan lives in Orlando, Florida.