What happens if my spouse dies during our divorce?

Divorce is a stressful period for anyone, but it can be made more difficult by the death of an estranged spouse.

The final Divorce Order (previous called a Decree Absolute) is the document that legally ends a marriage. Until this Order is granted by the Court, you remain legally married to your spouse. If your spouse dies before this Order is pronounced, the divorce will come to an end as there is no longer a marriage left to dissolve. Therefore, you will legally be regarded as ‘single’ and a widow/widower and free to re-marry should you choose to do so.

What about the finances?

Following the death of a spouse during divorce proceedings, the divorce process itself will simply come to an end. However, concluding the financial element of the divorce can be a little more complicated following a death of an estranged spouse.

The effect of the spouse’s death on the finances will depend on what stage any proceedings or negotiations are at and whether or not the Final Divorce Order has been granted.

Where the financial order has been made:

If a spouse passes away after the final financial Order is made and the final Order in the divorce is granted, then the surviving spouse can rely on the financial order and make a claim against the deceased spouse’s estate. The surviving spouse will be able to obtain what the order says they are to receive because the death does not automatically cancel the financial order made.

Once a final financial order is made by the Court, or a consent order is reached setting out the settlement, this defines the division of any marital assets and prevents any future claims from either party against each other. The surviving spouse is therefore not able to make any further claim against the deceased spouse’s estate if they die following implementation of the financial order.

However, there are separate rules relation to a pension shared upon death and therefore legal advice should be sought.

What if there is no financial order?

If a spouse passes before financial claims are finalised, and there are no formal debts to be enforced, the starting point will be to determine whether the deceased spouse had a Will.

If a divorce is finalised and no financial order has been made, but the surviving spouse relied on maintenance and this is not provided for in the Will then a claim could be brought against the estate.

If there is no Will, the rules of intestacy apply, and the surviving spouse is treated as a widow/widower.  This could lead to the surviving spouse, potentially, receiving all of the assets, including those held jointly and solely in the deceased spouses’ name, in accordance with probate. This would depend upon whether there are any children of the marriage, and whether they are still married. If the Final Order from the divorce has been pronounced then the surviving spouse would not inherit from the estate, as per the intestacy rules. If a Will was made by the deceased spouse leaving assets to the surviving spouse they would inherit from the estate, unless the final Divorce Order (decree absolute) has been made.

What about joint assets?

If a family home is owned between estranged spouses as joint tenants, on the death of one of the spouses, the property will not pass in accordance with the deceased spouses Will (if a valid one was made). Instead, the property will automatically be transferred to the surviving spouse.

If, following separation from your spouse, you would not want your share of a property to pass to your spouse should you die, you would need to sever the joint tenancy. This would enable your share of the property to pass to whomever you wish as part of your Will.

If you like to discuss details regarding your finances following a divorce, or have any queries regarding how to severe a joint tenancy, please get in touch with the Family Team today and we would be more than happy to discuss your requirements further. Please call us at our office in Leicester on 0116 255 4855 or our office in Loughborough on 01509 610 312 and ask to speak to a member of the Family Team. Alternatively, you may prefer to email us at legal@johnsonastills.com or fill in our enquiry form.

In addition, if you wish to prepare a Will, or discuss anything relation to the provisions of an existing Will further, please call our expert solicitors in the Wills and Probate Team who would be pleased to assist you with this. You can call us at our office in Leicester or our office in Loughborough. Alternatively, you may prefer to email us at legal@johnsonastills.com or fill in our enquiry form.