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Death During Divorce? What Happens?

Life is unpredictable and full of unexpected events. Although it rarely happens, it is possible for a spouse to pass away during the divorce process. When this occurs, the surviving spouse naturally has a lot of questions about what happens next, how property is divided, and whether the court proceeds with the divorce.

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When Divorce and Probate Intersect

Obviously, a divorce occurs when two people decide to end their marriage and divide their assets and debts. Generally, if the court has made no determination regarding the parties' property at the time of the decedent spouse's death, the divorce case does not proceed. Like any other lawsuit, the divorce case can't continue if one of the litigants has passed away.

Instead, the surviving spouse files a "suggestion of death" per Florida Rule of Civil Procedure 1.260(a)(1). A suggestion of death notifies the court one of the parties has died and gives the surviving litigant an opportunity to substitute a party to effectively stand in place for the decedent. In a divorce case, there is obviously no substitute party, so the case is simply dismissed.

At this point, the surviving spouse must determine whether the deceased spouse had a will. If there is a will, the decedent spouse's estate is administered according to the terms of the will. In the absence of a will, the deceased spouse's estate passes according to Florida's intestacy statutes, which are specified and laid out in Chapter 732 of the Florida Statutes.

Probate can be a complex process, and the surviving spouse may need to make several important decisions regarding the deceased spouse's property, so it's important to work closely with an experienced attorney.

Non-probate Assets

Certain types of assets, such as life insurance and retirement accounts, pass outside the probate process. If a deceased spouse had assets with designated beneficiaries, the surviving spouse has a right to these assets if he or she is named as a beneficiary.

Nuptial Agreements

According to the Florida Bar Journal, there are three purposes of nuptial agreements (sometimes called "prenuptial agreements"):

  • To protect the parties' assets in the event of a divorce
  • To set forth the obligations of each spouse during the marriage
  • To provide for distribution of the parties' assets in the event of one spouse's death

If you and your spouse had a valid nuptial agreement, the agreement may include provisions that specify how the deceased spouse's property should be distributed.

Navigating the Divorce Process

The divorce process can be an emotionally difficult and financially stressful time. Whether your case is relatively straightforward or complex, it is important to work with an experienced family law attorney at 305-717-7130 who understands the law and how it applies to your unique circumstances. With a compassionate, supportive attorney on your side, you can navigate the divorce process with confidence and hope for the future.

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135 San Lorenzo Avenue, Suite 650
Coral Gables, Florida 33146
Fax: 305-234-7028
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