DivorceWills & ProbateWhat Happens When A Spouse Dies During Divorce?

January 3, 2017

Divorce in itself can be complicated and full of legal hurdles. However, what happens when a spouse dies during divorce? Or when a will isn’t changed after divorce?

Different states view this situation differently because laws in each state are not the same. For one thing, some states require long waiting periods before a divorce is final, even though the final decree has been submitted.

Precedent Set by Pollard v. Pollard

In Texas, the case Pollard v. Pollard set a precedent for the situation of a spouse’s death before a divorce was finalized. In this case, the wife died while the appellate court was hearing the divorce case. The case had dragged on for close to nine years with the divorce going back and forth. The Court of Appeals Texas, Fifth District in Dallas gave its final ruling on June 15, 2010. The court ruled that despite the length of the case, since no final divorce had been granted, the parties were married at the time of the decedent spouse’s death.

The surviving spouse was a beneficiary or heir to the deceased wife’s estate. The probate court had jurisdiction to determine property distribution based on any estate planning documents the couple had or intestate laws if no estate planning existed.

When Divorce Is Final but a Will or Trust Isn’t Changed

Had the couple’s divorce been final, but a will or trust still existed that neither party changed, the estate would have fallen under a Texas statute, Treatment of Decedent’s Former Spouse. This statute states that a person is not a surviving spouse of a decedent if the person’s marriage has been dissolved by divorce, annulment or a declaration that the marriage is void. In this situation, the surviving spouse would have no rights to the estate.

If you have legal concerns, feel free to arrange a consultation. Our attorneys at C.E. Borman & Associates are glad to answer your questions, or offer legal advice.

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