What Happens if a Spouse Dies During Divorce?

As with any litigation, a divorce case may outlive one of the parties involved. A spouse may die due to illness, an accident or natural causes while the divorce case is pending. The death — coupled with uncertainty over the parties’ marital status — can have a profound effect on the property rights of the surviving spouse and on those of the deceased spouse’s heirs.

In many states, the death of a spouse cancels a divorce case automatically. But under Pennsylvania law, the case may or may not continue depending on the answer to one key question: Were grounds for divorce established before the person passed away?

If the answer is yes, then the law of equitable distribution will apply to the couple’s marital property, which means that the property is divided fairly, though not necessarily equally, between the surviving spouse and the decedent’s estate. Establishing grounds for divorce may occur in different ways:

1. If the divorce is based on the alleged fault of one spouse or the confinement of one spouse in a mental institution, the court made its own finding that grounds for divorce existed.
2. If the divorce is based on mutual consent, both parties filed affidavits of consent.
3. If the divorce is based on irretrievable breakdown of the marriage and separation of the spouses for one year, an affidavit was filed by the plaintiff spouse and no counter-affidavit was filed by the defendant spouse. Or, if an affidavit was filed denying the allegations, the court made its own finding that divorce grounds existed.

Even when grounds for divorce have been established, equitable distribution law applies only to marital property, which generally includes the assets and debts that the spouses acquired after they were married. The deceased spouse’s separately owned property, if any, will go directly to his or her estate.

If grounds for divorce were not established prior to death, then the divorce case comes to an end. The surviving spouse is entitled to all the rights any spouse would receive under the Pennsylvania probate code, such as the right to:

• Receive property through the decedent’s will
• Receive an elective share of property if dissatisfied with the bequest in the decedent’s will
• Receive assets to which the spouse is entitled under the federal Retirement Equity Act, which includes shares of the decedent’s pension and retirement accounts.

A surviving spouse is also entitled to any property passing outside of probate in which he or she has vested rights, such as insurance proceeds, joint accounts and real property the spouses held as joint owners with right of survivorship or as tenants by the entirety.

A death occurring during divorce adds legal complexity and emotional stress to an already trying situation. At The Law Offices of Jennifer Courtney, P.C. in Yardley, we are adept at resolving the property transfer issues and potential conflicts that can arise. Please call 215.493.3360 or contact us online to speak with our Pennsylvania lawyers.