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.
FAQs
What happens to the divorce if my spouse dies before it’s final?
A pending divorce usually ends because a death also ends the marriage. The family court case is typically dismissed, and property and debt issues shift to probate or estate administration.
Who receives property when a spouse dies during divorce?
Distribution follows the will or trust and your state’s inheritance laws. In community property states, community assets are generally split between the surviving spouse and the estate; elsewhere, intestacy rules apply if there is no will.
Do temporary divorce orders still apply after a spouse’s death?
Most temporary orders end with death. Any unpaid amounts already ordered may become claims against the estate.
Am I eligible for survivor benefits if my spouse dies before the divorce is final?
You may qualify for life insurance proceeds if you are the beneficiary and could be eligible for Social Security or pension survivor benefits, depending on plan rules and your marital status at the time of death.
What should I do first if my spouse passes away mid-divorce?
Obtain certified death certificates, notify the family court to close the divorce case, secure key documents and accounts, and speak with a probate or estate professional about next steps.
How are joint debts handled after my spouse’s death?
Creditors may pursue the estate and any co-borrowers. Keep essential bills current, verify what you legally owe, and file timely claims if the estate owes you money under prior orders.
What To Do If Your Spouse Dies Before the Divorce Is Final
Notify the family court and request case closure
Let the court know about the death so the divorce can be dismissed and you can obtain copies of any prior orders you may need.
Secure documents and accounts
Gather IDs, will or trust, deeds, titles, insurance, retirement documents, statements, and passwords. Forward mail and secure the home.
Open an estate or use small-estate procedures
Determine whether a formal probate is needed. An executor or personal representative is appointed to manage the process.
Evaluate community/separate property and beneficiary designations
Inventory assets and debts, confirm title and characterization, and review life insurance, retirement, and payable-on-death beneficiaries.
File for survivor benefits and make claims
Apply for Social Security survivor benefits if eligible, contact plan administrators, and submit life insurance claims with required proof.
Manage bills and protect credit
Keep essential payments current, identify debts owed by the estate versus you personally, and monitor or freeze credit to prevent fraud.
Distribute property and update your own plan
After debts and taxes are handled, distribute assets per the will or law, then update your beneficiaries and estate documents to reflect your new status.
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.
