Divorce can stir up a lot of negative emotions, but few spouses would truly desire the demise of the other side. However, while uncommon, it does happen that one spouse dies during the pendency of divorce or when post-judgment issues are still outstanding. Because it is so rare, divorcing spouses generally do not give any thought to the implications of such an event, but for older couples seeking divorce or for situations where one spouse has a serious medical condition, this potential complication should be preliminarily addressed. If such a sudden and game-changing event does occur, the logical follow up question is what happens to the divorce case? A discussion on the effect of the death of a party at different stages of the divorce process will follow below.

Death Before Divorce Officially Initiated

Other than legally dissolving a marriage, divorce focuses on deciding child custody arrangements, dividing property, and determining whether the payment of support is necessary. If a couple is in the midst of a negotiation over the decision to file for divorce, and one spouse dies, the consequences are rather straightforward since there is no pending legal action. The surviving spouse would become a widow(er) in the eyes of the law, which means that he or she would receive full custody of any minor or dependent children and inherit the deceased spouse’s property according to the provisions of the will, the rules of intestacy in Indiana, or as a beneficiary to a trust, life insurance policy, or other asset passed under the terms of a contract. In other words, a death makes divorce unnecessary since the law gives the surviving spouse the custody and financial support he or she would want.

Death While Divorce is Pending

Things can be much trickier if the death happens while the divorce is still pending, but the general rule is when a party to a case dies, the case is automatically abated or extinguished, unless there is another party entitled to the same relief. Since divorce is inherently limited to the spouses, each is considered an essential party to the action, and the loss of one usually brings the case to a halt. In this situation, the surviving spouse would inherit in the manner described above, and child custody would automatically descend to the remaining parent. If the case does continue, which is possible depending on how many and which issues are still unsettled, the deceased spouse’s personal representative would stand in his or her place. Circumstances that are more likely to keep a case going after death include allegations of financial waste, fraud, or other misconduct by the deceased party. Further, past judicial decisions specifically authorize a court to finalize a divorce if all issues are resolved, and only the administrative function of issuing the divorce decree remains.

Death After Divorce Finalized

If the death occurs after the divorce is finalized, usually any unpaid settlement or financial support for minor children is made against the former spouse’s estate as part of a probate proceeding. However, post-judgment divorce cases will sometimes continue if clarification or examination of a prior order is necessary to properly resolve a disputed issue. An Indiana court of appeals recently ruled that the dissolution court retained jurisdiction over a divorce case that was being reexamined followed claims of fraud and misrepresentation in the execution of the property settlement despite the death of the ex-husband while the case was still pending. Each divorce case is unique, and the rules mentioned are only general guidelines that may or may not apply to a particular case. An experienced divorce attorney should be consulted on the possible effects a change in circumstances could have on a specific case.

Talk to an Indiana Divorce Attorney

Even seemingly simple divorce cases can include unforeseen complications. To prevent being caught unaware, talk to an experienced divorce attorney about what to expect in the divorce process, and what your rights are as a spouse and parent. Christopher L. Arrington has extensive experience helping clients through the legal process, and can advise on your options to achieve the results you want. Contact the Danville family law firm to schedule an appointment.