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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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

Divorce & Mediation Law Firm | Cabanas Law Firm
18503 Pines Blvd, Suite 301
Pembroke Pines, FL 33029
(954) 447-2580

Sergio Cabanas, Esq. | Family Law Attorney | Cabanas Law Firm

Sergio Cabanas, Esq. founded the Cabanas Law Firm in 2006 and provides Divorce and Family legal services, as well as Estate Planning, to ensure his clients have planned for their newly single life and are protected after their divorce. He began his career in law in 1992 as a prosecuting attorney at the Broward County State Attorney’s Office, then continued his litigation track as an insurance defense attorney defending medical professionals against medical malpractice claims and expanded into disability and life insurance claims. Sergio is a Certified Mediator registered in the Supreme Court of Florida and a frequent speaker in the community about the importance of Estate Planning to keep families out of probate court and to prepare essential instructions in the event of disability or incapacity.