Separation and Divorce: Death and Its ImplicationsIn separation and divorce, death of a spouse can have a major effect on how the estate is divided and whether prior agreements will be honored. Whether your divorce is making a smooth and easy transition or is proving to be a vicious struggle between you and your soon-to-be ex, you probably haven't thought about how death could affect the outcome of your divorce. But what if your ex suffers an unexpected death during the divorce process before the details of the settlement have been worked out or the divorce is finalized? Get answers from the legal expert about divorce, death and its implications below.
How is everything divided if he dies while we are separated? Jacqueline's Question: My husband and I have been legally separated for about 20 years - neither of us wanted to remarry so there was no need for a divorce. I recently found that he does not believe in making a will. If he should die intestate, what would happen to his estate? We both are financially stable so neither of us need or want anything from the other, but all of our children could use some help. Brette's Answer: If he dies intestate, his estate is distributed according to your state intestacy laws. This divides the estate among the spouse and children. You can Google it or check Findlaw.com for your state's actual percentages. His mother says I'll end up with nothing if he dies. Ana's Question: We have been married for 15 years and my husband is terminally ill. My mother in law is helping take care of him at home. I cannot bear to be there because she is a very toxic woman, who is looking for any opportunity to kill the little relationship I still have with him. We have 3 properties, a lot of debt, and a business I run by myself. He wanted me to close it down but what I am supposed to do after he is gone? He is very cynical and I cannot tolerate his sarcasm. I know he is in pain, but if this drags on for 6 more months I don't think I could stand it. His mother wants to take him to Panama and claims I have no rights over him. I am not allowed to speak to his doctors. She has also mentioned she will see I end up with nothing. I would like to know what could happen legally if I leave him? Brette's Answer: This sounds like an incredibly difficult and stressful situation. I think you need to see an attorney who is knowledgeable about your state divorce and estate laws. You want to be very careful not to take any action that will result in you losing any part of your inheritance. In general, spouses who are still legally married but living apart are treated as married for the purposes of inheritance, but I would not want you to do anything until you spoke with an attorney who knew your specific state laws and caselaw and could advise you about what to do.» Return to questions Will I still be entitled to social security benefits? Sandra's Question: I am legally separated as of a month ago. If my spouse or myself should die, is the other still qualified to receive social security benefits? Brette's Answer: Legally separated is still legally married. The answer is yes. How do we handle his settlement & disability pay if he dies after divorce? Donna's Question: My husband and I are divorcing after 20 years of marriage. He has been receiving a monthly check from a settlement and a disability payment from the VA. I do not want to take away his income, but recognize I may feel differently when I'm older and on a fixed income. After the divorce is final, would I have any legitimate claim to those accounts in the event of my husband's death? If so, would it be an 'automatic' transfer or do we need to include language in our divorce papers to cover that possibility? Brette's Answer: It all needs to be done at the time of divorce. I would suggest you talk to an attorney about your options. Good luck. (Similar questions were addressed on the following pages Divorce and Social Security and Divorce and Pensions). Can my Dad stop his wife from getting his estate when he dies? Rene's Question: My father has been separated for more than eight years to his second wife. They are still married though. She left him high and dry and now is waiting for him to die to claim his property. How can he prevent this? Brette's Answer: He can write her out of his will, however your state may have a law that gives a spouse a certain percent of the estate no matter what. What if he died before signing the quitclaim deed? Pamela's Question: My husband and I divorced and I was awarded the house. However, he passed away before he could sign his part of the deed to me. What can I do to get his name removed? Brette's Answer: You'll need to get a court order. Check with the probate court and make sure they have the divorce decree. Good luck. » Return to top Can we close Dad's accounts and transfer his car title without telling his wife? Britt's Question: My dad recently passed away. He told all of us that he had divorced his 3rd wife, but it appears he may not have filed the paperwork. He also never changed his life insurance policy so we know she will be getting that money. My question is, what about the rest of his things like his bank account and car? Is she entitled to that? Is it illegal for us to close his accounts and transfer the title of the car without telling her? Brette's Answer: You can't do any of that without a court order - the bank and the DMV won't let you. If he had a will, it will be probated. If not, the estate will go through the administration process according to state laws. Generally, the wife inherits a large portion. Will the wife or the fiancé get the estate if he died before the divorce was final? Doreen's Question: I have a friend who just lost her fiancé in a car accident. He was separated from his wife, but not divorced. Now that he has passed away, does she have any legal rights over his Estate or does his wife? I am not sure if he ever made a Will, he was only 29 and most people don't think about wills at that age. Brette's Answer: If he had no will, the fiancé gets nothing. If there is a will, the terms of the will are followed, however the wife may have a right of election against it if she is not included. If there is not will, assets are divided according to state intestacy statutes which means the wife would get it all, unless there are children who would share in the estate. .» Return to questions What happens if one spouse dies before the divorce is finalized? Donna's Question: What happens to assets that I owned prior to a 4 year marriage if I were to die after divorce papers had been filed, but before property division and divorce decree? Brette's Answer: If you are not divorced, you are still married and assets are divided in that way. If you have a will, the estate is distributed according to the will. If you do not have a will, it is distributed according to state intestacy laws. Can a divorce go through if a spouse dies before the final judgment? Carla's Question: My husband and I were in the process of a divorce after 20 years of marriage. He died 11-14-07 and I received papers the divorce was final on 12-10-07. Does this affect the divorce? Brette's Answer: A divorce can't go through when a person is deceased. You need to contact the court with the death certificate and get it reversed. Check with an attorney who can help you. » Return to top of Separation and Divorce: Death and Its Implications
Related Articles: Brette Sember is a former family and matrimonial attorney and mediator, nationally recognized expert, and author of many books including The Divorce Organizer & Planner, No-Fight Divorce, and How To Parent With Your Ex. This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce Process / Children and Divorce/ Emotions and Divorce Home / Divorce Guide / State Resources / Divorce FAQS
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