Steven Fernandez |

Divorce

Sometimes it seems as if the hardest parts of life unfold all at once. What happens if you’re in the middle of a divorce and your spouse dies? Does the divorce continue? What happens to the marital assets? What about any debts you owe together? Are those yours or do they become the property of your spouse’s heirs? Do you have the right to file an injury lawsuit, or did you forfeit that right when you decided to split up?

These are tough but important questions. You need to understand your rights and obligations if your spouse dies before you are able to finalize your divorce.

Divorce Proceedings Stop When a Spouse Dies

It takes two people to get divorced. Unless your divorce has been finalized by a court, the process will terminate if one spouse dies. This is true even if you’ve negotiated some of the terms of your divorce. Those terms aren’t enforceable until a judge signs off and a court issues the Notice of Entry of Judgment. As a result, you won’t be a divorcee. Instead, you’ll be considered a widow or widower.

How a Death During a Divorce Affects The Terms

So, the divorce process stops when a spouse dies. What does that mean for the allocation of property, child custody, and financial obligations?

Allocation of Property: If your spouse dies during a divorce, you’ll typically assume ownership of all community property. You may also inherit all of your spouse’s separate property unless they had a Last Will and Testament saying otherwise.

Marital Debts: You become solely responsible for any marital debts you and your spouse had during the marriage. If your name is on a deed or contract, you’ll be on the hook for satisfying an agreement.

Child Custody: As the childrens’ surviving parent, you assume sole physical and legal custody. However, grandparents in California do have the right to petition a court and ask for visitation rights. Grandparents can also ask for custody if they believe that the children won’t be safe or cared for in the absence of the other parent.

Child Support: What if you had negotiated child support or alimony before your spouse died? Your spouse is no longer alive to fulfill those terms. However, you will likely assume ownership of your spouse’s assets, including retirement funds. You may even be entitled to a death benefit or a life insurance payout through your spouse’s employer. These assets and funds can make up for the financial support you should have received if your spouse hadn’t died.

Can I Sue If My Spouses Dies During a Divorce?

Let’s say your soon-to-be ex-spouse was killed in a car accident while visiting Miami on business. The accident wasn’t your spouse’s fault. Can you file a wrongful death lawsuit to recover compensation, or did you forfeit that right when you filed a petition to get divorced?

Here’s some good news. You probably would have lost the right to file a wrongful death lawsuit if your divorce has been completed. Both California and Florida reserve the right to file a lawsuit for surviving spouses or partners. To learn more about filing a wrongful death suit Florida, speak with a personal injury lawyer in Miami who can handle your case. This generally doesn’t include former spouses.

If your spouse died before the divorce was finalized you’d be considered a current spouse. There’d be nothing standing between you and a wrongful death lawsuit. If your divorce had been finalized, a wrongful death claim would probably only be recognized if it was brought by any children you shared.