What Happens if My Spouse Dies While We’re in the Middle of a Divorce?

Going through a divorce in Florida can be a stressful and time-consuming process. Most spouses merely want to finish their divorce proceeding as quickly as possible. However, certain issues may complicate the divorce, including disputes related to custody, property division, and debts.

However, what happens if your spouse dies before your divorce is complete? Do you still need to complete the divorce proceedings? What happens to your children and property?

Divorce Proceedings Stop if a Spouse Dies

A divorce proceeding will stop if your spouse dies before the court issues a final divorce decree. You cannot obtain a divorce from a deceased person. Therefore, the divorce case will be dismissed.

In this scenario, you are considered a surviving spouse. Therefore, instead of dealing with the family court, you will deal with the probate court.

Some issues to consider include:

  • Child Custody – As the child’s only surviving parent, you assume sole legal and physical custody of your children. However, grandparents or other parties could petition the court seeking custody in some situations.
  • Domestic Support – Child support payments and alimony cease.
  • Marital Debts – Any joint debts that you co-singed become your debts. You are legally responsible for the payment of those debts.
  • Division of Property – Your spouse’s assets are now subject to their probate estate. How the assets are disbursed depends on your spouse’s Last Will and Testament.

If your spouse dies during a divorce action, you most likely need legal advice from both a family law attorney and a probate lawyer. Additionally, suppose your spouse died because of a car accident or another personal injury. In that case, you may also want to consult with a personal injury lawyer about a potential lawsuit against the party who caused your spouse’s death.

What Happens if My Spouse Had a Will?

If your spouse had a Will, their assets are disbursed according to the terms of the Will. However, your spouse may not have changed their Will and still left everything to you.

You have the choice of accepting the terms of the Will, or you can petition for an elective share under Florida Statute §732.201. An elective share is your right to a portion of your spouse’s estate. For example, if your spouse changed their Will to cut you out, you may still have the right to your elective share because the divorce was not complete.

What Happens if My Spouse Did Not Have a Will?

If your spouse did not have a Will, the probate estate assets are distributed according to Florida’s intestate laws. Your share of the estate depends on whether your spouse had any surviving children and other factors.

Generally, a surviving spouse is entitled to the entire estate if the deceased had no surviving children at the time of their death. However, if your spouse had surviving children, you could be entitled to one-half of the estate, even though your spouse died during a divorce proceeding.

Suing the Party Who Caused Your Spouse’s Death

If your spouse died because of an accident, you might be able to sue the at-fault party for damages. Under Florida wrongful death laws, your spouse’s personal representative can file a wrongful death action on behalf of your spouse’s heirs and estate. Only specific heirs may receive compensation for a wrongful death claim.

Surviving spouses are among the heirs that can benefit from a wrongful death action. If your spouse dies before your divorce is finalized, you are considered a surviving spouse; the divorce has not been granted. Therefore, you should be entitled to some or all of the proceeds from a wrongful death action, depending on whether your spouse had other legal heirs entitled to a portion of the proceeds.

Damages that may be available for a wrongful death claim include compensation for:

  • Medical bills incurred between the time of your spouse’s accident and the date of their death
  • The loss of services and support between the date of injury and date of death
  • The loss of future services and support
  • Mental pain and suffering
  • Funeral expenses and costs
  • Loss of parental instruction, companionship, and guidance
  • Loss of consortium
  • Loss of inheritance

An experienced wrongful death lawyer can assist you in preparing and filing a claim or lawsuit. If you have minor children, you may also want to discuss what types of damages they could be entitled to for the loss of a parent.

Contact Our Divorce Law Firm in Orlando, FL

Contact the experienced Orlando divorce lawyers at McMichen, Cinami & Demps today for legal assistance. Contact our Orlando, FL office at (407) 898-2161 to schedule a free consultation.

McMichen, Cinami & Demps – Orlando Office
1500 E Concord St
Orlando, FL 32803