What Happens if my Spouse Dies During the Divorce?

Individuals involved in divorce proceedings often have a myriad of concerns: What will we do about custody? How much money will I receive? Can either one of us afford to stay in the house? How long will this process take?

It is fair to say that most divorce litigants do not consider the daunting question of What happens if my spouse dies before the divorce is final? Unfortunately, this reality is not uncommon to many divorce attorneys who may have experienced litigants passing away from illness, accident or otherwise.

In Pennsylvania, the answer to “What happens next” following the death of a spouse hinges upon the procedural status of the divorce action itself.

“Have ‘Grounds for Divorce’ been established?”

Following the death of a spouse, the first question a divorce attorney would ask is “Have ‘Grounds for Divorce’ been established?” The term Grounds for Divorce refers to the legal basis upon which the Court is able to grant the divorce. Prior to 2005, if a spouse died during the divorce then the divorce action would simply discontinue regardless of what point in the divorce process the parties had reached. Property rights and economic claims were addressed pursuant to the Pennsylvania Probate Code. Since 2005, the Divorce Code requires Pennsylvania family courts to consider whether  grounds for divorce were established at the time of a spouse’s death. 

So, with that mind, you may be wondering – How do I establish grounds for divorce?

While the Pennsylvania Divorce Code still has “fault” as a legal basis to seek a divorce, it is common practice to file for divorce in Pennsylvania under “no fault” grounds. This is in large part  because the Courts do not consider whether there has been  “adultery” or “cruel and barbarous treatment” when dividing marital property. The two most commonly cited no-fault grounds for divorce are “Mutual Consent” (where each spouse may choose to sign a document agreeing to the divorce) and “Irretrievable Breakdown” (which requires only one spouse to sign an affidavit alleging that the parties have been separated for a period of at least one year[1]). The latter process requires service of the affidavit and provides a time period for the other spouse to file a counter-affidavit where they may object to the statements made by the spouse who filed their affidavit. In some Pennsylvania counties, you cannot move a divorce case forward to address economic claims without grounds for divorce being established.  

If grounds for divorce have not been established at the time of one spouse’s death, then the divorce action will discontinue.

In this event, it will be as if the divorce was never filed and the surviving spouse retains all rights they have under the Pennsylvania Probate Code and any property disputes would be addressed under the probate laws. As each case is fact specific, it would be prudent to review the will of the deceased spouse and potentially consult with an estate attorney to understand any potential issues related to being the “surviving spouse” as it relates to marital assets and the property belonging to the deceased spoused.   

If grounds for divorce have been established, then the Family Court will retain the official power to make a decision as to how the marital assets are divided.

This means the case will move forward to equitable distribution even though the other spouse is deceased. In this unfortunate scenario, the estate steps into the shoes of the deceased spouse in the divorce action. The divorce case would pick up where it left off, and the deceased spouse’s estate would proceed to participate in, and litigate, the divorce action.

In recent years, there have been cases before the Pennsylvania appellate courts where a spouse has died and the other spouse is claiming grounds have, or have not, been established. As with anything, the answer is not always black and white. It is important to consult with a family law attorney if you find yourself in this scenario as well as an estate attorney. The Obermayer Family Law Group and Trust and Estates Department are here to help.  

[1] Individuals who separated prior to December 5, 2016 have to demonstrate they have been separated for at least two years.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.