11 Oct 17

Can a divorce go through if a spouse dies before the final judgment?

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A divorce can be a long process, lasting months or even years from the first petition to the final judgment. Many things can happen in the intervening time, including the death of the spouse. Things can quickly get complicated if a spouse dies before the divorce is finalized. It is important to be prepared for this possibility, especially if the divorce is likely to drag on.

From Divorce to Probate

In New York and many other jurisdictions, when one spouse dies before the divorce is finalized, then the divorce proceedings can no longer continue. The marriage has effectively and legally ended by death, and divorce is no longer a possibility. This causes the divorce case to automatically terminate. Anything created during that process, including temporary agreements or orders, end. Your situation will move from divorce court to probate court, which will now handle all the marital assets.

The Effects of Probate

Once the assets move into probate, you are essentially no longer dealing with a divorce case. All the rules change, and assets are handled according to probate and inheritance laws. This means things can go in several different directions depending on what has been created in the spouse’s estate plan.

If no trusts have been created, then all the spouse’s assets and share marital property will enter probate. Since the divorce proceeding was never finalized, you are still considered the person’s legal spouse and are treated as the surviving spouse for the purposes of probate and inheritance. In some ways, this could leave you better off than if you had continued with the divorce. As the surviving spouse, you will be entitled to no less than 50 percent of the person’s assets and will likely inherit the majority of those assets by default.

The Importance of a Will

The spouse’s last will and testament will be the governing document during the probate process. If the spouse had a will, assets will be divided according to that will as closely as possible. Keep in mind that only assets that enter probate are typically subject to the will. Assets included in trusts and assets that already have defined beneficiaries, such as life insurance policies, will go to the stated beneficiary automatically.

It is common for a divorcing spouse to write the partner out of the will before the divorce is finalized. Even if you are written out of the will, as the surviving spouse you are still entitled to half of the marital assets or whatever you would be entitled as the spouse, regardless of what the will says. If there is no will or the will was not altered to write you out, then you will probably inherit most of the marital assets because you are the surviving spouse.

How to Prepare for This Possibility

This does not have to be an unknown possibility in your divorce. It is possible to determine exactly what happens to your share of marital assets and determine what is likely to happen to your spouse’s share before the divorce process is finalized. You may wish to include an estate planning attorney in your divorce team, especially if you have many assets or you suspect your spouse may die during the proceedings.

If possible, you can prepare all of this ahead of time. If you can still communicate with your spouse, then have them share with you what is included in their estate plan, including any trusts, and what is in his or her will. If the divorce process has already begun, you may not be able to affect what your spouse does, but you can at least know what will happen if your spouse should pass.

You can control what happens to your share of the assets. If you want to ensure that your spouse does not inherit all your assets, then you should prepare a will and put as many of your assets into trust as possible. Assets in trust will not enter probate and will only go to the named beneficiary, which can be any person or organization.

Discuss these options with both a divorce and estate planning attorney to ensure you have organized your assets correctly and are prepared for the possibilities.




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