What Happens if a Spouse Dies in the Middle of a Divorce Case?

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If you are in the middle of a divorce and your spouse passes away, it can cause a lot of confusion. Understanding what will happen with your marriage, your property, your children, and other things will help you to navigate this unusual situation. While we can certainly help you through the legal aspects of this event, we also recommend that you talk about the emotional aspects with a trusted friend or a professional. Having someone you were once married to, and are actively in the process of divorcing, pass away will often result in complex emotions that need to be worked out.

Will the Divorce Continue?

The simple answer is no. Divorce courts will not hear a case when one of the parties has died. As soon as you are able, you will want to have a ‘suggestion of death’ filed with the courts, which will notify them of your spouse’s passing and the divorce proceedings will end. At this point, you will be considered a widow or widower.

Will This Impact the Children?

Many people have a temporary child custody order in place until the divorce is finalized. If your spouse dies, the temporary order will become void, and you will immediately have full custody of your children. In situations where custody was being restricted due to allegations of abuse or other issues, the state Child Protective Services would need to file new papers with the courts if they believed it would be unsafe for the children to return to you.

The siblings and parents of your deceased spouse will have to talk with you about what, if any, time they will be able to spend with your children. In Florida, grandparents do not have any legal visitation rights in most cases. You will need to look at what is in the best interests of your children to determine how you want these relationships to develop.

What Happens to Marital Assets?

Unless you already executed a marital settlement agreement, which is a binding contract, all the marital assets that were being divided up during the divorce will become your sole property. If you had to move out of your home during the divorce, you will be able to move back in and maintain ownership of it. If your spouse had purchased a car in their own name after the divorce had started, you would not be legally obligated to honor that purchase in most cases. If you signed a marital settlement agreement before your spouse passed away and before the court could hold a final hearing, that contract is binding on you. If you waived your interest in your spouse’s estate, you will be held to that in a probate action.

We are Here to Help

Just because the courts will end the divorce process when your spouse dies does not mean that all your legal challenges will be over. In some cases, adult children or relatives of your spouse will want inheritance that they would have gotten had the divorce been finalized. While this is undoubtedly a difficult situation, there is a happy life waiting for you. Our trusted Legal Team provides bilingual legal services in Broward and Miami-Dade counties. We handle all financial aspects of Florida Divorces, including Mediation, Postnuptial Agreements, and Asset Protection.

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