What if my spouse dies before our divorce is final?


It’s a difficult situation, to be sure, but it is a fact of life that your soon-to-be ex-spouse may conclude your divorce proceedings earlier than expected if they pass away while the divorce is pending.  It is not common, but what do you do if this happens to you?

First of all, you have to remember that if you haven’t agreed to any property division in writing, than it will be as if you are still married and the property will pass to you via intestacy rules in NC (if there is no will), or if there was a will, it will pass according to the will.  You may or may not have to contest the will depending on whether your spouse made changes to it in contemplation of the divorce.  (i.e., if your spouse passes the marital home to someone else because they were supposed to take it in the divorce, but you don’t have a property agreement signed, then you would have a claim to that property).

Second, you need to look to the retirement accounts, life insurance, etc.  These assets pass outside of probate, which means that who the beneficiary is is a matter of contract law.  Here too, you may have a claim, but it is much harder to get these assets if your spouse has switched the beneficiary to someone other than you in contemplation of the divorce.

Finally, there is the issue of spousal support.  This can either be post-separation support or alimony.  In the event of a death of the paying spouse, the spousal support will end.  For this reason, I encourage all of my clients to require a term life insurance policy to insure the alimony payments.  However, if you do not have a signed agreement at the time your spouse dies, then alimony is probably not yet being paid.

If you do have a signed property agreement, than that will likely be enforceable against your spouse’s estate.

Regardless of the above scenarios, you will probably need a lawyer to assist you in making sure your property rights are protected.  Divorce is emotional – but so is dealing with your ex-inlaws in the disposition of your ex-spouse’s estate.


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