What do you do if your spouse dies in the middle of a divorce?
Divorce is complicated enough as it is. But what happens when your spouse suddenly dies before the divorce has been finalized? Not only do you deal with the social confusion about how to behave – are you the grieving widow? what if your spouse was already in a new, committed relationship with someone else? – but you also deal with the legal limbo of what happens to your marital property. Do you still collect on your former spouse’s life insurance policy? Do you keep the vacation home that your spouse was meant to take in the divorce settlement?
It’s important that you talk to both a divorce attorney (which you were hopefully already doing for your divorce proceedings), as well as an estate attorney, when you find yourself in this situation. When your spouse dies during divorce proceedings, what will typically happen is that property will be divided according to estate law. That means that you are considered the surviving spouse, and all property that would have gone to you upon the death of your spouse will still go to you – even if you and your spouse had discussed something different in your divorce negotiations.
There are exceptions. For example, if you were far enough along in the divorce proceedings that an agreement had been drafted but not yet signed, it may be arguable that the probate could should honor what was outlined in the agreement. Then, property and assets that would have gone to the spouse who died will now go to the spouse’s family or designated beneficiary. Or, if you or your former spouse had already gotten to the stage where one of you signed a quit claim deed, that property will probably no longer be treated as marital property. If your spouse changed the beneficiary on an investment or insurance policy or had already changed his or her will, you might not have rights to those assets either, depending on the circumstances.
A person can change their will at any time, regardless of where things are in the divorce settlement process. Therefore, if you want to ensure that assets stay in your family or go entirely to your children from another relationship, you should consider changing your will as soon as possible after your separation. The will alone won’t trump any divorce settlement. For example, you can’t just claim property by writing about it in your will. However, if you had a pension account, for example, and are not able to change the beneficiary until your divorce is final, you could try to protect that account for your new beneficiary by making your wishes known in your will.
Divorce and estate law can be complicated, and matters become even more complicated when a spouse dies in the middle of a divorce proceeding, particularly when there has been a settlement. Separation of assets hasn’t been finalized, yet the family may feel that you are not entitled to certain assets since the intention was to end the marriage. You need an experienced divorce attorney to help you through the process and to protect your rights. I’m Judy A. Oxford, attorney with many years of experience in divorces in Franklin, Columbia, Nashville, and other middle Tennessee locations, and I help clients just like you settle their divorces and get the best share of assets possible. Call me today if you are considering separating or divorcing your spouse, or if you find yourself in the unfortunate situation of having had a spouse die while you were trying to negotiate your separation or divorce. Call my office at (615) 791-8511 or use my secure online form to schedule a free consultation.