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So, Can you Divorce a Dead Person?

If a spouse dies before the divorce is finalized in Texas, the divorce proceeding generally ends because a divorce is a legal action that can only occur between two living parties. The answer depends upon several things, most notably:

 Did the other party cause death?
Was the marital status terminated early by bifurcation?

The phrase “marital status terminated early by bifurcation” refers to a legal action in a divorce proceeding where the court splits the divorce into two separate parts or issues. Bifurcation allows the court to dissolve the marriage legally, terminating the marital status of the parties, while other issues such as division of property, child custody, or spousal support are still being negotiated or litigated.

For this article, We are going to assume that death is a result of accidental or natural causes, not criminally expedited. Here’s what typically happens:

1. End of Divorce Proceedings: Since the marriage legally ends with the death of one spouse, there is no longer a marriage to dissolve through divorce.
2. Estate Proceedings Take Over: The legal focus shifts from divorce to probate. The deceased spouse’s estate will be handled according to their will if one exists. If there is no will, then the estate will be distributed according to Texas intestacy laws.
3. Property and Asset Distribution: Community property and assets that were subject to division in the divorce will now be part of the deceased spouse’s estate and will be distributed according to the will or intestacy laws rather than the divorce decree.
4. Custody Issues: If the deceased spouse were a parent, custody issues would need to be resolved. The surviving parent usually receives full custody unless it is shown that it is not in the child’s best interest. If the surviving spouse is not the biological or adoptive parent, a custody battle could ensue.
5. Support Obligations: Temporary support orders typically end with a spouse’s death. However, the surviving spouse might be entitled to a portion of the deceased spouse’s retirement plans, life insurance, or other survivor benefits.

1. Legal Beneficiaries: The surviving spouse remains the legal beneficiary for retirement or life insurance policies unless the deceased had changed the beneficiary after separation but before death.

In such cases, the legal landscape shifts dramatically, moving from the domain of family court to the realm of probate and estate administration. It emphasizes the importance of having a well-considered estate plan, including a will that reflects current intentions, especially during divorce proceedings. For the surviving spouse, it may result in an unexpected shift in financial and property arrangements, highlighting the need for diligent estate management and an understanding of non-probate assets.

Divorce Proceedings Stop When A Spouse Dies

If a party’s death occurs before their marital status is dissolved, the property passes according to intestate succession or another governing estate plan, including survivorship and community property rights. The family court loses jurisdiction over the property, which now must be adjudicated by the probate court.

How a Death During a Divorce Affects The Terms

So, the divorce process stops when a spouse dies. What does that mean for allocating 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 your spouse’s separate property unless they had a last will saying otherwise.

The Decedent’s Non-Probate Assets

All states distinguish between probate and non-probate assets when a person dies. Non-probate assets pass directly to a named beneficiary by contract, so probate isn’t necessary to achieve a transfer of title. For example, life insurance, death benefits, and retirement plans usually have named beneficiaries. If the probate court decides your marital estate’s disposition, it generally has no control over these assets. They go to the named beneficiaries, regardless of your divorce plans. You’ll usually inherit if your spouse named you and neglected to change her designation when you filed for divorce.

What Happens When a Will Goes to Probate?

If you have assets at the time of your death, they must still pass through the probate process so your outstanding bills are paid and the remaining assets go to your statutory heirs — persons whom by the law in your particular state are deemed to have the right to inherit from you. If you leave a will, the process is overseen by your chosen executor.

The probate attorney emerges as an indispensable guide through this transition, offering expertise in navigating the probate process, from validating wills and administering estates to resolving disputes and ensuring the equitable distribution of assets. Their role is pivotal in bridging the gap between the untimely end of divorce proceedings and the commencement of estate administration, providing clarity and support to those navigating these concurrent legal challenges.

Role of a Probate Attorney

The allocation of property, resolution of custody issues, and determination of financial obligations now fall under the purview of estate law. Assets and liabilities are distributed not according to the potentially contested terms of a divorce settlement but in accordance with existing wills or, in their absence, state intestacy laws. This underscores the necessity of having clear and up-to-date estate planning documents, even amidst the turbulence of a divorce.

A probate attorney, also known as an estate attorney or an estate lawyer, specializes in the legal process through which the estate of a deceased person is managed and distributed. The specific tasks and responsibilities of a probate attorney may include, but are not limited to, the following:

Advising on Probate: Providing legal advice to the executor of the will or the legal representative of the estate regarding the various stages and legal requirements of the probate process.
Validating the Will: Assisting with the filing of the will with the probate court and working to have it accepted and validated by the court.
Estate Administration: Helping the executor understand and perform their duties, which may include identifying and securing estate assets, obtaining appraisals for the deceased’s property, and managing the day-to-day details of the estate’s administration.
Debt Settlement: Advising on the payment of the deceased’s debts and final bills, including the liquidation of assets to satisfy creditors if necessary.
Tax Issues: Preparing and filing any required estate tax returns, as well as advising on income tax implications for the estate and its beneficiaries.
Legal Representation: Representing the estate in court, which may include defending the will from contestation or prosecuting such claims on behalf of the beneficiaries.
Distribution of Assets: Assisting with the transfer of the deceased’s assets to the appropriate beneficiaries according to the will or state law if there is no will.
Resolving Disputes: Acting as a mediator for disputes that arise between beneficiaries, or between beneficiaries and the executor.
Court Documents: Preparing and filing all documents required by the probate court promptly, which might include petitions, accountings, and reports.
Closing the Estate: Guiding the executor through the process of closing the estate, which includes distributing assets and discharging any remaining obligations.

Is a Divorce Decree a Conveyance of Property?

A divorce decree usually splits property between spouses and addresses child support, custody, and other issues. However, even though your decree orders your property to be split in a certain way, you may have to take additional steps to make the transfer effective. For example, you may need to sign a deed giving real estate to your spouse.

Navigating the Intersection of Divorce and Estate Planning

The sudden death of a spouse during divorce proceedings presents a complex array of legal and emotional challenges. It serves as a poignant reminder of the unpredictability of life and the critical importance of comprehensive legal planning. By understanding the roles and processes involved—from the cessation of divorce to the initiation of probate—individuals can better prepare for the unexpected, ensuring their rights and the rights of their loved ones are adequately protected in every circumstance.