It is important to think about what may happen in the event that one spouse dies before the finalization of a divorce. While it may seem as though a divorce is no longer necessary, there are still issues and concerns surrounding property division that the court may need to address.

Marital Property in the Event of Death

A spouse does not necessarily need to sign divorce papers in order for a divorce to be granted. Since all states accept no-fault divorces, both signatures do not need to be present in the event that one party dies. If one partner objects to a no-fault divorce, it is seen by the courts as an irreconcilable difference between the couple, which is a legitimate cause for a no-fault divorce.

Many states will not grant a divorce since the marriage was ended by death. What the court will begin to decide is what the divorce proceedings mean for the division of marital property.

The death of one party can mean two different things for the divorce proceedings:

• Court retains jurisdiction over marital property according to the state law; or
• Divorce court loses jurisdiction and property goes to probate court.

If the court retains control of the marital property, it will determine the property settlement as it would under a no-fault divorce. Property will be divided between the former spouse and the estate of the deceased.

If the court loses control of marital property, probate court steps in to determine division of property.

When Property Goes to Probate

There is some property that will remain unaffected if it goes to probate court, such as retirement plans and life insurance benefits. On these, a beneficiary is named. Since these documents are a contract, probate cannot deny these to the living spouse if the deceased did not change the name on these documents before their death.

If a trust was established, the fate of the marital property will not be subject to probate. A trust is a legal document that details rules for what happens to a person's property in the event of their death. Trusts cannot be touched by a probate court and immediately go the person listed as a beneficiary.

If a trust was not established, the property will go through probate court. Depending on the laws of the state, the court will decide on how to divide assets. If a spouse was written out of a will, they will generally not receive property through probate. If the spouse passed away without ever having a will, some inheritance based on state law will occur.

When undergoing a divorce, it may be beneficial to consult with an experienced family law attorney about what may happen to property in the event of one party's death. An attorney can help make provisions and work to provide a divorcing spouse with the best possible outcome in the event of the unexpected.