You might find yourself in the middle of a divorce and then your spouse dies. As you can imagine, this is rare, but it does happen. If you have filed for divorce in Florida, you are still considered “married” until the Judge signs the final judgment (divorce decree). Thus, if one spouse dies in the middle of a divorce, that person is considered legally married upon death. You cannot obtain a divorce from a deceased person in Florida. Your divorce attorney should file a suggestion of death with the court and the divorce will subsequently be dismissed. But then what happens next?
You might find yourself questioning what happens to your children, property, and other financial matters after the divorce is dismissed. Below are some issues you may want to consider:
1. Child Custody
If the parties to the divorce had joint children, the surviving parent will have sole legal rights and timesharing of the children.
You cannot get child support or alimony from a deceased person. However, there may be instances where the spouse or child could receive social security survivor benefits or similar benefits from the deceased parent. You may also be entitled to collect life insurance if the deceased person carried life insurance.
3. Property Division
Since the spouse died before the divorce was final, all assets belonging to the deceased spouse will be subject to probate. How those assets will be distributed depends on if the deceased spouse had a will or died intestate (without a will). As the surviving spouse, you will be entitled to the deceased assets under the terms of the Will or to your elective share under Florida law. You should contact a probate attorney to assist you resolving the estate of your deceased spouse.
Contac us if you have questions about your divorce.