While this does not happen often, it can certainly happen. If one spouse dies before the marriage is dissolved, the other party will be treated as a surviving spouse in the eyes of the law. This is one reason why it is important to have a will that sets out your wishes in the event of your death. If you do not have a will, the intestacy statutes in most states will award a surviving spouse most, if not all, of the remaining marital estate. Most courts will issue a status quo order at the beginning of a case that prevents either party from changing any insurance or other beneficiaries so talk with your lawyer before you do anything to change your policies or retirement plans.
In Kentucky, courts will usually grant an interlocutory decree which will dissolve the marriage and return the parties to the status of single persons while reserving all other issues for later adjudication. This is important in the context of one party dying before the divorce can be finalized since it severs the spousal relationship and the other party would no longer be treated as a surviving spouse under Kentucky's intestacy laws. Additionally, most married couples own real estate together in joint tenancy with rights of survivorship. That means that if one party dies, the other party is automatically vested with one hundred percent ownership in the property. However, Kentucky courts have established that where a married couple owns property jointly with survivorship rights and then there is an interlocutory decree entered, the survivorship clause is severed. Thus, in the event of one party's death, the other spouse does not automatically own the entire property.
When one party dies before the divorce is complete and an interlocutory decree has been entered, there are provisions in the law that will allow the court to substitute the decedent's estate as a party to finalize the property division. In this scenario, the deceased spouse's executor or administrator represents the estate in the divorce. This can get particularly ugly when an adult child is named as executor in a will and now finds himself squaring off against an evil stepmother in the child's deceased father's divorce case. (Sounds made up doesn't it? I had that exact situation years ago, except two sons were co-executors. I was just glad gun play did not become an issue.)
This can be a complicated issue which is why it is important to hire a skilled family law practitioner for your case. If you have more questions, please contact the Alford Law Office.
Photo courtesy of Rob Boudon
Labels: convey property, debt, divorce, divorce decree, divorce lawyer, estate planning, family law, interlocutory, kentucky, marital property, quitclaim deed, retirement, will