What if Someone Dies During a Divorce?

Mar 3, 2023 | Divorce

Losing an important partnership can be one of divorce’s most challenging emotional aspects. If your spouse dies during the divorce process, this may trigger confusing emotions and create questions about what happens to the deceased spouse’s estate.

The case will be dismissed if your spouse dies before finalizing the divorce. Regardless of your intent to divide marital assets and debt through the divorce process, you are viewed as a full spouse if the divorce has not been finalized. All temporary orders put in place by the court will dissolve in this event.

Upon the death of a spouse, property, debt, and other marital assets must be distributed according to the deceased spouse’s will. If no will or pre-nuptial agreement otherwise dictates, the surviving spouse is entitled to assume the assets and debt of the deceased.

When There’s No Will, There’s Still a Way

If you and your spouse do not have children, you will assume 100% of your spouse’s assets and debt unless otherwise indicated in a will upon their death.

If you and your spouse do have children or if your spouse has children from a previous relationship, you will be granted 50% of the assets, and the remaining 50% will be divided between the children per stirpes, meaning that the children will have to work out the distribution of the remaining 50% between themselves.

Can Surviving Spouses Still Renounce The Will If a Divorce Was In Process?

Assets are distributed according to the terms of the will if a deceased spouse leaves a will. However, suppose your divorce was not final at the time of your spouse’s death. In that case, you still have the option to “renounce the will,” meaning you have legal grounds to object to allocating your spouse’s assets and can adjust the distribution of property.

If you renounce the will, Illinois estate law dictates that the surviving spouse can receive up to 50% of the estate if the deceased spouse does not have descendants. However, if your spouse did not have children, you are entitled to up to 33% of the estate if you renounce the will.

While some spouses adjust their will during or shortly after a divorce, sometimes the two agreements are not aligned. For example, suppose you are still a beneficiary in your deceased spouse’s will after the divorce. In that case, you will be automatically removed from the will.

It is in your best interest to retain an experienced family law attorney to ensure that you and your spouse’s assets are protected.