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What If My Spouse Dies Before Our Divorce is Final?

It happens: one party of a Florida divorce passes away in the middle of the divorce proceedings, leaving the surviving spouse with a host of questions. Is he or she officially recognized as a widow/widower, or a divorcee? Will he or she still have to go through the typical divorce procedures, including dividing up the assets? Will they be included in the deceased spouse’s estate plans? If the deceased was set to have to pay child support and alimony, how will the surviving spouse receive that support, if they receive it at all?

How a Death May Affect the Divorce Proceedings

In truth, most states – including Florida – will not grant a divorce after death, even if it was a pending divorce. On one hand, there really is no need for a divorce, as the death of the one spouse officially severed the union—i.e. “Till death do us part.” On the other hand, some states may want to retain jurisdiction over marital property after a divorce has been filed, and the courts will determine the property settlement as they originally would have had the decedent spouse lived. However, because the decedent spouse is no longer there to claim his or her settlement – including both assets and debts – the judge will distribute the marital property between the living spouse and the deceased’s estate.

In other states, including Florida, the state loses all jurisdiction over the marital property when one spouse passes away before the divorce can be finalized, and the deceased’s property goes into probate, as it would have under normal circumstances.

Probate Instead of Divorce

If one spouse passes away in the middle of a Florida divorce and before the judge can determine an adequate settlement, the surviving spouse must file a “suggestion of death” according to Florida Rule of Civil Procedure 1.260 (a)(1). A suggestion of death informs the Florida courts that one spouse has passed. Typically, in a non-divorce case, a suggestion of death allows the surviving family of the litigant to substitute a party to stand in for the deceased. However, in a divorce hearing, a person cannot be substituted, so upon the filing of a suggestion of death, the judge will dismiss the divorce case altogether.

Once the divorce is dismissed, the deceased’s estate will be distributed according to the terms of the deceased’s will, if they had one. If they did not have a will in place, the decedent’s assets will be distributed according to Florida’s intestacy statutes, which can be found in Chapter 732.102.

All non-probate assets—meaning, assets that have designated beneficiaries, such as retirement accounts, life insurance policies, and the like—will go to the designated beneficiaries. If the surviving spouse is still named as a beneficiary on one or more of the deceased’s non-probate assets, they are wholly entitled to collect those assets.

Consult with a Boca Raton Divorce Attorney

At the Law Offices of Schwartz | White, our Boca Raton divorce lawyers can help you through this exceptionally difficult time in your life. Divorce is hard enough as is, but having to deal with the death of a spouse in the midst of a separation is unthinkable for many individuals. Our attorneys are here to help you through this tough time, and to help you navigate the legal proceedings post death. To consult with a Boca Raton divorce lawyer, contact our family law firm at 561-391-9943 to schedule a consultation today.



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