The process of divorce is hard enough with the dissolution of the marriage and the division of property. Unfortunately, there is one thing that could make the process almost unbearable – the death of your spouse in the middle of the proceedings. Whether it’s due to old age or an unexpected medical complication, death is difficult in every capacity. While the emotional journey may be just beginning, it’s important to figure out what the next steps are in the journey you have already started. Learn more about what happens when a spouse dies during the divorce process here. 

The Divorce Proceedings

Regardless of what is going on, it takes two people to get divorced. Therefore, if your divorce has not been finalized, the process will be terminated when one spouse dies. Any terms that were already negotiated aren’t enforceable as a judge has not signed off and no Notice of Entry of Judgment has been filed. Because the divorce was never finalized, you would not be considered a divorcee, but a widow or widower.

How a Death During a Divorce Affects the Terms

After the divorce process stops when a spouse dies, the remaining partner will be left with many unanswered questions. These may include the allocation of property, financial obligations and child custody. Regarding property, the living partner will assume ownership of all community property, as well any separately owned property unless their Living Will & Testament says differently. 

If children are involved, the living parent will get sole legal and physical custody. In some states, grandparents can file for custody and visitation rights. Grandparents can also petition for custody rights if they feel the child/children are in danger in the absence of the deceased parent. Additionally, if you were a recipient or future recipient of child support, your spouse is no longer alive to fulfill that term. In that case, you most likely will assume ownership of your spouses’ assets which can include a retirement fund and death benefits. These funds can make up the expected financial support.

What Happens to Community Property?

Community property is defined as all of the income and assets that were acquired between you and your spouse during the marriage. During the divorce process, a judge will divide this property either 50/50 or however the state deems. Unless the deceased had a will that stated differently, or updated it after separation, the living spouse will be granted full ownership over property, assets, as well as insurance policies, trusts and retirement assets. 

Just as with community property, the marital debts will be the sole responsibility of the living spouse. If the deceased spouse was killed due to the negligence of another, the living spouse can sue for pain and mental anguish, as well as “…loss of future earnings, loss of services, companionship, care, protection, and guidance”, according to an Indianapolis wrongful death lawyer.

Whether it’s death or divorce, the loss felt from losing a spouse is an unpleasant experience for everyone involved. Having financial and personal responsibilities set with a living will and testament is important for anyone in a long-term partnership or legal marriage.