Probate and Former Spouse Death

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When a spouse dies during divorce proceedings, the marriage is automatically dissolved. If you file for divorce, you are automatically considered separated. In some states, separation still keeps the marital status of the both of you. A final dissolution or death are the only two things that can change your status.

A death of one of the parties requires a dismissal of the divorce case and you may have to wait for the divorce to be finalized, still. They will still be legally married until the finalization which means that they may still be entitled to a portion of the estate unless the will states otherwise. The intestate laws of the state will determine how the assets are distributed to family members.

Directions of the Will or Living Trust

If the deceased left a will and/or trust then they will be distributed by the trustee or executor as directed. If the divorce is not finalized, the assets will be distributed based on the status of marital property in your state: either 50-50 community property or equitable distribution. If the will or trust states that you are not to take anything, you may be able to contest it.


If the couple agrees, family law court can rule about the relationship aside from property issues, child support and custody. They can simply address the divorce. If the status is separated (or bifurcated) from the other issues, then the executor of the deceased spouse’s estate will be substituted to discuss the other pending issues.

If the marital status was resolved before the spouse’s death, then the estate must be presented to family court as part of the pending dissolution of marriage (divorce). If an executor hasn’t been appointed, then the successor of the estate may represent the deceased former spouse.

Community Property or Equitable Division of Marital Assets

Community property division states dictate that any assets acquired by either party during the marriage is to be split down the middle in case of death or divorce and the probate process will determine which assets are marital property and which are considered separate. Equitable division states assign assets acquired during marriage to each party depending on what each party brought to the marital estate.  This may change in the event of death, especially if the deceased left no will, and probate may take longer because of it.

Probate Attorney

The death of a spouse can be harrowing, especially in the middle of a legal battle. DO not make the mistake of going into it alone! A former spouse’s legal team may still fight to prevent you from inheriting assets and will do what they can to contest your involvement. This is all to common and sadly happens to grieving families. Be sure that you have added protection from a lawyer with experience in this complicated field as well as your divorce lawyer. Consult an experienced probate lawyer to help you fight for what is rightfully yours and help your family manage their affairs at this difficult time. In the event you need legal advice, contact dissolution of marriage Tampa FL to get more information.

Thank you to The Mckinney Law Group for providing great insight on this topic.