A contested divorce can take months or even years. During that time, whether by natural causes or accident, one of the parties may pass away. What happens to an ongoing divorce when a husband or wife dies?

The Florida Family Law Rules of Civil Procedure lay out the rules specifically under the “Death” sub-paragraph:

“In the event of the death of one or more of the petitioners or of one or more of the respondents in an action in which the right sought to be enforced survives only to the surviving petitioners or only against the surviving respondents, the action does not abate. The death shall be suggested on the record and the action proceeds in favor of or against the surviving parties.” Florida Family Law Rules Of Civil Procedure 12.260(a)(2)

This language is not clear but implies that not everything “abates” or ends just because one of the parties dies.

What is clear is that you cannot be granted a divorce if you or your spouse is dead. “[A] court is not empowered to render a…judgment of dissolution after the death of one of the parties.” Jaris v. Tucker, 414 So. 2d 1164 – Fla: Dist. Court of Appeals, 3rd Dist. 1982.

What If Death Is Anticipated?

If one of the parties is terminally ill and believes they may pass away before the divorce is finalized, they can file a motion requesting bifurcation of the proceedings.

A bifurcation can allow the grant of the underlying divorce but does not finally allocate the assets and liabilities of the parties. Instead, it reserves those matters.

The reserved issues can still be resolved in divorce court even though one of the parties is deceased. “If a trial court bifurcates a proceeding for dissolution of marriage by entering a judgment dissolving the marriage but retaining jurisdiction to determine property issues, the subsequent death of a party does not deprive the trial court of jurisdiction to determine the issues reserved.” Passamondi v. Passamondi, 130 So. 3d 736 – Fla: Dist. Court of Appeals, 2nd Dist. 2014

What If No Divorce Has Been Granted And A Husband Or Wife Dies?

If there was no final judgment for divorce, the divorce case is cancelled after someone files “a suggestion of death.” Fernandez v. Fernandez, 648 So. 2d 712; Malave v. Malave, 178 So. 3d 51. The marital assets must then be allocated through probate court.

What If The Deceased Spouse Left No Will?

If the deceased spouse left no will, the deceased is said to have died “intestate.” An intestate spouse’s assets will be distributed to the surviving spouse as follows per the statute:

“Spouse’s share of intestate estate.—The intestate share of the surviving spouse is:
(1) If there is no surviving descendant of the decedent, the entire intestate estate.
(2) If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.
(3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.
(4) If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.” Fla. Stat. Sec 732.102

For clarity let’s review the scenarios of what happens to a spouse in an intestate divorce in more plain English than what the statute provides:

  • The dead spouse has no kids = everything the spouse.
  • The dead spouse has kids but they are all the same kids of the spouse = everything to the spouse.
  • The dead spouse has kids but at least one of them is not the child of the spouse (2nd husband or wife) = the spouse gets one half of the estate.
  • If the surviving spouse has kids who are not the dead spouse’s kids AND the dead spouse and the living spouse share at least one child in common = the living spouse gets half of the estate.

What If The Deceased Spouse Left A Will?

If the deceased spouse left a valid will, the surviving spouse can elect to live with the terms of that will or, if dissatisfied with those terms, can choose “the elective share.”

“Right to elective share.—The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent as provided in this part, to be designated the elective share. The election does not reduce what the spouse receives if the election were not made and the spouse is not treated as having predeceased the decedent.” Fla. Stat. Sec. 732.201

So, you cannot write your husband or wife out of your will to ensure they will receive nothing from you. If your spouse doesn’t receive a portion of your estate they believe is fair they can make the election and receive, instead, 30 percent of the value of your estate.

“Amount of the elective share.—The elective share is an amount equal to 30 percent of the elective estate.” Fla. Stat. Sec. 732.2065

There’s a great deal of detail as to what accounts for the “elective estate.” Anyone seeking an elective share is advised to also seek a probate attorney.

What About The Marital Home After The Death Of A Spouse?

Florida law is particular about people’s houses. The law refers to the house a person lives in as a “homestead”

“As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child or minor children, except that the homestead may be devised to the owner’s spouse if there is no minor child or minor children.” Fla. Stat. Sec. 732.4015(1)

This means the “homestead” house cannot go to anyone but the spouse if there are no minor children no matter what the will says.

If there are minor children and a spouse dies the spouse can only leave the homestead to the spouse for life with a vested remainder to the children. So, the spouse gets the house until the living spouse also passes away, whereupon, the children would automatically get the house.

If you’d like to learn more about all of your options during divorce and properly consider what could happen if you or your spouse should pass away, contact my Naples, Florida family law firm to learn more about the divorce aspects of that situation.

If you’d like to learn more about what happens in probate court, I’d recommend you contact Naples, Florida attorney Anthony Centrangelo for probate law advice. Directions to Attorney Centangelo’s office from my Naples, Florida office are below.