When a Spouse Dies During a Divorce

St. Louis Divorce Attorney, Jonathan Marks

Recently, the Washington Post ran an article about men and women who had the experience of an estranged spouse dying during a divorce, from “an almost-ex to widow” or widower. The article mainly focuses on the emotional difficulties in such a situation; in this post, we will look at the legal ramifications and how to protect yourself in the event a spouse dies during divorce.

In Missouri, the legal rule is very straightforward: should a spouse die while a divorce is pending – even if the parties have submitted the case for a ruling after trial – so long as final judgment has not been entered the divorce proceeding becomes a nullity (“abated” is the legal term).

So how does this play out in terms of property?

In a divorce, the court must identify all marital property and divide it equitably. So, for example, if the spouse who died had an IRA through work valued at $100,000, all accrued during the marriage, the surviving spouse in a divorce would have had a half-interest in the account, or $50,000. But for all property not titled in the surviving spouse’s name, death takes the case out of family court and into probate court, where the controlling instrument is a will. If the deceased spouse changed his or her will after the divorce process began and wrote the estranged spouse out of the will, the surviving spouse suddenly finds himself or herself at a literal loss – marital property has ceased to exist and moves over to whomever the deceased spouse designated as heirs.

If the surviving spouse did get written out as a beneficiary entirely, does that spouse have no recourse? The spouse can certainly elect to take a statutory claim, to elect against the will, which entitles the spouse to a third of the estate. Of course, one third is far less than one half and may be devastating financially.

What if the parties had a separation agreement? In this situation, matters get tricky. The separation agreement is only enforceable in the event of divorce (unless written otherwise), and of course no divorce happened, so no family court has the ability to enforce it. However, a surviving spouse could contest the will in probate and use the separation agreement as evidence of intent, but it likely will not succeed, and carries the higher risk of ending up with nothing – not even the statutory election of one third of the estate.

So how can spouses protect themselves in the event one dies before the divorce becomes final? The best way would be to have a provision in a prenuptial agreement that addresses this contingency and effectuates the intent through proper legal instruments. Another good option would be insurance policies that cover this contingency by making the surviving spouse the sole beneficiary under the condition of one dying before the divorce becomes final.

While this situation is uncommon, it is not a zero possibility, and for spouses that rely on the other spouse financially, leaving oneself open to having nothing is too great a risk to take.

If you have questions about a spouse dying during divorce, contact us – we can help.