All divorces take time. In Washington State, a divorce must take at least three months because there is a mandatory 90-day waiting period before the divorce can be finalized. Many divorces last much longer, especially if there are conflicts over children or the division of property. As time goes on, anything can happen. If a spouse dies while the divorce is progress, what happens to the case?
Death Before Divorce
If a spouse dies before either person files for divorce, the divorce petition is unnecessary. The surviving spouse will be a widow(er), and will be entitled to inherit the deceased spouse’s property under the terms of the will or according to Washington’s rules for intestate succession. In essence, death before a divorce negates the need for divorce at all.
During the Divorce
Once a spouse files the initial petition, death can complicate the divorce. The traditional rule is that a death of one of the parties abates, or stops, a divorce proceeding. Abatement means that even if a divorcing couple has hammered out the division of property, decided child custody and child support, and resolved every issue in their divorce case, the death of one of the spouses before the final divorce decree will erase the divorce case entirely. As a result, the surviving spouse will receive all of the property and full custody of any children, just as he or she would if the spouse had died before filing for divorce.
Death After Divorce
Once a couple is divorced, the death of a party will only affect arrangements involving a parenting plan, child support, or spousal support. Obviously, the deceased party can no longer physically care for the children or split parenting time. However, the deceased’s will or estate will likely provide financial support for any of his or her children.
The surviving spouse will only be entitled to inherit from the deceased if he or she is included in the will. Any marital property which was awarded in the divorce will remain part of the deceased’s estate, and will not be given to the surviving spouse.
Exceptions to the Rule
In certain circumstances, a divorce action can survive death. A court may agree to keep a divorce case open after death if the case involved an appeal, or if there were allegations of fraud, misrepresentation, or misconduct during the divorce. However, these types of cases are rare.
At Ashby Law, our attorneys help divorcing couples through the use of traditional divorces, collaborative divorces, arbitrations and mediations. Our goal is to help divorcing couples reach a peaceful ending to their divorce so that the family can move on emotionally and financially.
For more information on how Ashby Law can help you with your family law needs, contact us today by calling 590-572-3700.