Aggressive Advocates With Over 50 years Of Combined Experience

What Happens When A Spouse Dies during a divorce case?


To: General Consumer
From: Lindsey Green, Esq.

re: – Death and Divorce

I. What Happens If Either Spouse Dies Before You Get Divorced?

  1. Either party’s death terminates their marriage by operation of law prior to an entry of judgment of dissolution or a status only judgment.
  2. What About If There Are Already Orders? The death does not affect orders already entered in this case.

II. The Right Of Survivorship- What It Means And What To Do

  1. If a joint tenant spouse (with real estate or bank accounts) dies pending marital dissolution proceedings but before entry of judgment terminating marital status, family court’s jurisdiction terminates and the right of survivorship controls and it passes in full to the surviving spouse.
  2. On The Other Hand- By statute, joint tenancies between spouses are automatically severed, i.e. the right of survivorship terminates by a judgment of dissolution.
  3. Solution- (1) Get a status only judgment, (2) stipulate to change the joint tenancy by right of survivorship to tenancy in common or if opposing counsel won’t do 1 or 2 then motion to sever the title to tenancy in common. Ensures client’s 50% interest will be preserved for his or her heirs in event client’s untimely death prior to judgment or terminating status.
  4. In The Solution Be Careful Not To Violate The ATROS- Automatic Temporary Restraining Orders- Thou shall not encumber, change title, change beneficiaries, or eliminate a right of survivorship etc.
  5. Status only judgment entered and one of the parties dies before adjudicating the final judgment on reserved issues allows family court and not probate court jurisdiction over community property distribution of the parties or parties’ estate. Motion to successor in interest of decedent to step into shoes of decedent spouse.

III. Special Rule For “Community Property” And Death With Right Of Survivorship

  1. A right of survivorship is not presumed with regard to community property accounts.
  2. If these accounts exist post filing of the dissolution bifurcate status or motion to sever to tenancy in common.

IV. QDROS And Death

  1. Qualified Domestic Relations Order (QDRO)- Dividing up pensions and 401k interests among spouses post dissolution.
  2. What About If Participant Dies- A domestic relations order shall not fail to be treated as a QDRO solely because it is issued after the death of the participant.
  3. On The Other Hand- What if the non-employed spouse does not survive? The assignment by QDRO to the non-participant spouse expires with his or her death. At that point, the surviving participant’s right to full benefit payments is restored.
  4. Beware ERISA- QDROS subject to ERISA (Employee Retirement Income Security Act) or federal law which trump state law- Lesson- eliminate ex-spouses as beneficiaries under the pension and/or other benefits with the pension document and other documents, not just the dissolution judgment.

V. Spousal Support And Death

  1. Court ordered spousal support obligation terminates upon either party’s death or re-marriage of the supported spouse. It is self executing. No motion or court action required.
  2. Silence is not good- Include a termination clause via either party’s death or re marriage of supported spouse.
  3. The court may include an amount sufficient to purchase life insurance for the supported spouse on the life of the obligor spouse.

VI. Child Support And Death

  1. A parent has a statutory duty to support their children, even after their death.
  2. The child support claim is a creditor of the trust and/or a creditor of the obligor’s estate in probate.
  3. Trustee of deceased obligor’s living trust joined to enforce child support in dissolution action is feasible.
  4. Additional solution- Life insurance- children as irrevocable beneficiaries for obligor’s life insurance as part and parcel of child support obligation.

VII. Child Custody And Death

  1. O.J. Simpson vs. the Browns (grandparents)- A famous case.
  2. If custodial parent dies during minority minor children revert automatically back to non custodial parent as remaining surviving parent. Order of preference vs. detriment and best interests if given to parent.
  3. Beware preferences of minor children, especially above age 14 could be given to de facto parent. Step-father, uncle, etc.

VIII. Final Thoughts on Death and Divorce

  1. Post death inheritance rights- Divorce impacts wills, trusts, nonprobate transfer instruments, pay on death accounts, etc. Divorce cancels a spouse’s rights under will, trust, retirement benefit plan, pay on death accounts, transfer on death vehicle registration, survivorship of property with joint tenancy.
  2. A marital settlement agreement in the divorce could lay out specifically what ex spouse gets via estate planning even after divorce. Estate planning items should be redone after divorce.
  3. Life Insurance policy not effected by dissolution judgment so change of beneficiary might be necessary.

Thanks, Lindsey B. Green