Mother and daughter grieving after spouse dies during divorce

What Happens When a Spouse Dies during Divorce?

In Estate Planning, Probate by casalmorenoblog

Contested divorces are often fraught with obstacles and delays. But what happens to the estate when one spouse dies during divorce? This article discusses some possible scenarios.

During the months—sometimes years—that it takes to complete a contested divorce, anything can happen. If one of the parties passes away, there are procedures within Florida law that keep things moving. While you cannot be granted a divorce in the event that one of the petitioners dies, by accident or through natural causes, the courts will proceed with distributing the marital assets, whether there was an estate plan or not.

What happens to the estate when a spouse dies during divorce?

Marital Assets Go Through Probate Court

When there is no final judgment in a divorce at the time of death, the marital assets must then be allocated through probate court. Probate court can be time-consuming and expensive, so married couples should put together an estate plan sooner rather than later.

When the Deceased Has No Will

In cases where the deceased spouse left no will behind, they are considered to have died intestate, and their assets will be distributed to the surviving spouse through the courts. If the spouse had no children and no estate plan, the entire estate goes to the surviving spouse. If the deceased spouse had children only with the surviving spouse, the same outcome occurs.

There are also a few scenarios in which the surviving spouse may only receive part of the estate. For instance, if the deceased spouse had at least one child with someone besides the surviving spouse, the surviving spouse will inherit half of the estate. Similarly, if the deceased and surviving spouses had at least one child together and the deceased spouse had children from other relationships, the surviving spouse also receives half of the estate.

Other circumstances may come into play during probate, so it is critical to speak to an estate planning attorney if you want to protect your interests.

When the Deceased Created a Will

If the deceased spouse left a valid will behind, the surviving spouse may choose to abide by the terms of the will. Alternatively, if the deceased spouse wrote their husband or wife out of their will, the surviving spouse may also choose to claim their right to the “elective share” of the estate. The former option grants the surviving spouse a percentage of the estate (30% in Florida) regardless of the terms of the will.

Exceptions to this rule do exist, so you should discuss your case with an attorney.

What happens to the house when a spouse dies during divorce?

If no minor children are involved, the family home will go to the surviving spouse. When there are minor children in the picture, the surviving spouse will get the house until they pass away. After that, the children will inherit the family home.

Let us help you prepare for all eventualities.

Going through a divorce can be difficult if you are not prepared for what is to come. At Casal & Moreno, we will work with you to ensure that you are ready for whatever life throws at you. Contact our office today so we can discuss your family law needs.