Actually, your spouse doesn’t have to sign the divorce papers in order for a divorce to be granted. All states recognize a policy of no-fault grounds which allows you to proceed without a spouse’s signature. A judge simply signs it and it is an official termination of your marriage. However, if a death occurs before you are able to do this, things may become complicated.
The Effects on Proceedings
Usually a divorce won’t be granted if one of the spouses has passed. One reason is because a divorce is no longer needed to null the marriage since it has already ended in other circumstances. However, without a divorce granted, some states still have jurisdiction over marital property after a divorce is filed for. The court still is able to decide on terms of property settlement. Marital assets and debt will be divided between the surviving spouse and the deceased’s estate according to the state’s code of family law, which can vary. In other states, divorce courts lose the ability to make these decisions in the event of a spousal death after filing. Probate courts take over for divorce courts in cases like these.
Effects on Non-Probate Assets
There is a distinction between probate and non-probate assets made by all states when someone dies. An asset considered non-probate are items passed directly onto a beneficiary through a will or trust, so the probate process is unnecessary. Life insurance, retirement plans and the like usually fall under non-probate when they have designated beneficiaries. If your estate falls into probate court, the court generally doesn’t have control over these assets. They go to the named beneficiaries no matter what your divorce plans outline. A spouse will usually still inherit assets if the deceased originally named them and did not change the designation before death.
When the estate passes through probate…
The rest of the estate that is subject to probate will likely pass through the process unless the deceased created a trust. If a trust was created to distribute assets, then the terms of the trust will probably bypass the probate process.
If a trust was not created and the state’s divorce court passes jurisdiction to probate court, the surviving spouse will usually inherit the deceased’s estate, though that depends on your state’s laws. If your spouse did not remove you from any wills, trusts or other documents before your divorce proceedings then you will inherit their assets. If no will exists, then you will usually inherit depending on your state’s laws of succession.
You should consult an estate attorney and a divorce attorney to assist you in such a difficult case. You will want lawyers that have a clear understanding of the particular laws of your state if your spouse dies before commencing divorce proceedings. The simple fact that a divorce was filed for prevents you from making any attempt to contest your spouse’s will by claiming an elective share. However, to best review all your options, seeking legal counsel is the top priority.
Thank you to our friends and contributors at Scroggins Family Law, PLLC for their insight into divorce.