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What Happens If My Spouse Dies Before Divorce is Final?

by | Nov 23, 2021 | Estate Planning, NY

The last thing you expect when filing for a Long Island divorce is that your spouse will pass away during the proceedings. However, this very nightmare is a reality for many New York residents. Although this is a difficult subject to discuss, it’s important that you understand now what can happen if your spouse dies during your divorce process. Here’s what you should know and how to get the legal help you need during such a challenging time.

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Your Divorce Proceedings Will Be Terminated

Divorce necessitates the participation of two people. If one spouse dies before a divorce is granted by a judge, the proceedings will come to an end, even if your divorce is partially settled. The terms of a divorce aren’t legally binding until a court signs off on them and the final judgement is issued by the judge. This can only happen when your spouse is living. If your spouse dies, you cannot get a divorce and you’ll be referred to as a widower or widow instead.

Allocation of Assets After a Death During Divorce

The division of a couple’s assets when one spouse dies during divorce proceedings tends to be complex, especially if they were involved in a high net worth divorce. The allocation of property, debts, and other assets generally proceeds as follows:

Property Division After a Death During Divorce

If your marriage ends as a result of death while you’re divorcing, the surviving spouse is usually awarded all community property. Unless a person has a Last Will and Testament that states otherwise, a spouse may also receive all of the deceased spouse’s separate possessions.

Child Custody After a Death During Divorce

If you have children with your deceased spouse, typically you will be awarded both legal and physical custody of your kids as the surviving parent. In some cases, grandparents may have the right to ask a court for visitation privileges. Grandparents may also seek custody if they feel strongly that the children will be unsafe or neglected by the surviving parent and/or without the deceased parent.

Child Support After a Death During Divorce

When your spouse is no longer living to meet their child support obligations, they cannot be made to pay. However, you’ll most likely inherit your spouse’s possessions, including any money in their checking, savings, or retirement accounts. These assets are intended to provide compensation for the financial support you would have otherwise gotten if your spouse hadn’t died.

Debt Allocation After a Death During Divorce

Because your spouse is also no longer alive to pay their debts, if you are still legally married at the time of their death, you will also inherit these financial responsibilities. Typically, the only way to be released from marital debts is to finalize your divorce and have those debts legally allocated to your spouse by a judge. This option isn’t usually available for spouses who lose their exes during a divorce.

Filing a Wrongful Death Lawsuit for Your Spouse

If your divorce was not finalized at the time of your spouse’s death, they are technically not your ex and you are technically still considered their legal spouse. This means you can pursue compensation from a personal injury or wrongful death lawsuit the same as a married spouse could.

These funds can often help cover unforeseen funeral expenses, childcare, and spousal support without dipping into any savings the deceased may have had. However, if your spouse was not killed as a result of wrongful death and no one can be held responsible for negligence, you will generally not be able to pursue this type of compensation.

When to Contact a Long Island Divorce Lawyer

If you are exploring the possibility of getting a divorce or separating from your spouse is imminent, it’s critical to consult with an experienced Long Island divorce attorney as soon as possible. If your spouse is in failing health, it may be important to push toward a resolution as quickly as you can. You need the assistance of an experienced lawyer right away.

Contact Hornberger Verbitsky, P.C. today for more information or to book your initial consultation by dialing 631-923-1910 or fill in the short form on this page. We are available now to provide you with the comprehensive, compassionate Long Island divorce support you need.


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