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

Posted By Max Soni, Uncategorized On October 4, 2017

Divorces are never fun, or easy, but what happens if one spouse dies before the divorce is final? The easiest part of that to answer is that the remaining spouse becomes a widow or widower, not a divorcee. A divorce cannot be finalized after the death of one of the parties.
As far as the deceased spouse’s estate goes, however, there are multiple factors to be considered. Let’s go through some of the different scenarios. Remember, though, that the laws governing the estates of decedents are different from state to state, so you will want to consult with an attorney right away to find out what you are entitled to, and what you must do to claim it.
The simplest items will always be non probate items. These are accounts like life insurance policies, retirement savings, etc. which have a named beneficiary. These items will always go to the person named as the beneficiary.
If there is a will, the terms of the will almost always will dictate how the decedent’s assets are divided. Chances are that the decedent will not have changed their will since filing for the divorce, since it was not final.
If, by some chance, the decedent did in fact change their will to exempt their spouse before their death, it does not generally mean that the spouse will receive nothing. Most states allow a separated spouse to claim an elective share of the estate when the divorce was not final. The amount varies, usually between one third to one half of the assets. Again, this is something that varies from state to state, and you should always consult with an attorney to be sure you’re following the correct procedure.
If the decedent died without creating a will, then the estate will be handled by the local probate court. The court will oversee all proceedings in the estate, deciding how assets are to be divided. If the decedent had no children, the surviving spouse will inherit the entire estate. If there are children, generally the assets are divided into equal shares for the spouse and each child.
In some states, once a divorce is filed, the family court will retain jurisdiction over the estate once one spouse dies instead of turning it over to the probate court. In these cases, the assets are divided the way they would have been in the divorce proceedings, and then the remaining assets are passed on to the probate court to be divided amongst any remaining heirs. If there are no remaining heirs, the whole estate will go to the surviving spouse.
As you can see, the plain and simple answer to the question is no, a divorce cannot be finalized after the death of one of the spouses. What it means for the estate and any assets involved, however, is influenced by a multitude of different factors. The best way to proceed would be to contact a lawyer specializing in family law who can review the case and begin filing all of the necessary paperwork to secure any inheritance as soon as possible. Time is of the essence when dealing with estate law.