Separation or Divorce Death: The Legal Ramifications

During a separation or divorce, death of a spouse can have ramifications on how the estate is divided and whether prior agreements will be honored.

By Womansdivorce | Answers by Brette Sember, J.D.

Whether your divorce is making a smooth and easy transition or is proving to be a vicious struggle between you and your soon-to-be ex, you probably haven't thought about how death could affect the outcome of your divorce.

But what if your husband suffers an unexpected death during the divorce process before the details of the settlement have been worked out or the divorce is finalized? Or what happens if you're separated but not divorced and your spouse dies? Get answers from the legal expert about the impact of death during a divorce or separation below.

Separation and Divorce Death FAQs

How is everything split if he dies while we are separated?

Jacqueline's Question: We've been legally separated for about 20 years - neither of us wanted to remarry so there was no need for a divorce. I recently found that he does not believe in making a will. If he should die intestate, what would happen to his estate? We both are financially stable so neither of us need nor want anything from the other, but all of our children could use some help.

Brette's Answer: If he dies intestate, his estate is distributed according to your state intestacy laws. This divides the estate among the spouse and children. You can Google it or check Findlaw.com for your state's actual percentages.

What are her rights to his estate if he dies after a long-term separation?

Confused: My boyfriend left his wife 18 years ago but never filed for legal separation, and is still married to her. We've been together since then, current homeowners, two teenage kids, cars. If something was to happen to my boyfriend, would she get part of what we have acquired together?

Brette's Answer: Yes, they were legally married and she is entitled to her statutory portion of his estate. This is why you need to see an attorney and have wills, possibly trusts and health care proxies made up.

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He died after a long-term separation and I wasn’t named in his will.

LJB's Question: I left my alcoholic husband several years ago. We never divorced or even legally separated, we just stopped living in the same home. And as both of us had decent jobs and we had no children, we didn't bother with alimony or anything. I've just found that he has passed away six months ago. What can I do, if anything if I was not named in his will?

Brette's Answer: You may have a right of spousal election to receive a certain amount. Go see a probate attorney

What happens if one spouse dies before the divorce is finalized?

Donna's Question: What happens to assets that I owned prior to a 4 year marriage if I were to die after divorce papers had been filed, but before property division and divorce decree?

Brette's Answer: If you are not divorced, you are still married and assets are divided in that way. If you have a will, the estate is distributed according to the will. If you do not have a will, it is distributed according to state intestacy laws.

Can a divorce go through if a spouse dies before the final judgment?

Carla's Question: My husband and I were in the process of getting a divorce after 20 years of marriage. He died in November and I received papers that the divorce was final three weeks later. Does this affect the divorce?

Brette's Answer: A divorce can't go through when a person is deceased. You need to contact the court with the death certificate and get it reversed. Check with an attorney who can help you.

Does death nullify the divorce agreement?

Marshall's Question: My father recently passed but not before his wife divorced him. She is now saying that because the divorce was so close to his death it makes the divorce illegal and therefore nullifies it. The divorce was finalized and parties were paid their respective parts of the assets before he passed. Does his death nullify the divorce agreement?

Brette's Answer: If the divorce was completely final and signed by the judge it is legal.

How do I prove I am a widow and not a divorcee?

Barbara's Question: I never signed the divorce decree and the court records show active status. My attorney says it is clear I am not divorced because the divorce was never finalized. However, my husband passed away earlier this year and the pension office (which sends me some payments per the separation agreement) refuses to accept the active status from the court and insists the death certificate stated divorced. My dilemma is, how to prove I am a widow and not a divorcee as it affects my benefits with a big difference. Would certified copies of the court docket be sufficient or do suggest something more?

Brette's Answer: You need to contact a probate attorney to determine what is necessary in your state. In some states family court can retain jurisdiction and divide marital assets among the surviving spouse and beneficiaries. It just depends on your state laws and requirements. 

What happens if my deceased husband was named in his mother’s will?

Marcia's Question: My husband of 37 years passed away 17 months ago. Recently his mom passed and left him some money. Who is that supposed to go to? My husband did not have a will at the time of his death.

Brette's Answer: It goes to his heirs. If he didn't have a will, it is distributed according to your state intestacy statutes. However, you should check with an attorney because his mother's will might have provisions that change what happens if he died before her. 

Am I entitled to the house when he dies if my name is still on the deed?

Sharon's Question: I am divorced, but my name is still on the house that my ex occupies. I was just informed that he has terminal cancer and will die within the year. Am I entitled to the house when he passes?

Brette's Answer: It depends on how interests in the home were disposed of in the divorce. If the divorce stated he got all interest in the home, then it would belong to his estate. If the divorce left you as joint owners, then you would be entitled to a portion of the value of the house.

What if he died before signing the quitclaim deed?

Pamela's Question: I was awarded the house when we divorced. However, he passed away before he could sign his part of the deed to me. What can I do to get his name removed?

Brette's Answer: You'll need to get a court order. You should be able to since the court ordered it to you. You'll need an attorney to get the paperwork done. Also, check with the probate court and make sure they have the divorce decree. Good luck.

What if he died before all the assets were split?

M's Question: I recently divorced but equalization of assets has not been achieved and he passed away 4 months ago. My in-laws are not showing the will. Will everything that is under his name gets probated? I froze/put lien on our assets but he still kept draining assets that I had failed to put lien on. If he acquired lot of debt, will I to lose my share of the marital assets, considering the house title is still joined?

Brette's Answer: You need to have your lawyer handle this. Basically the estate owes you what you were given in the divorce.

What if he died before the settlement was fully paid?

Margaret's Question: My ex-husband died and he still owed me 2 years of rent. He made an agreement with his business partner that would I get an x amount of money every month for 5 yrs. All this was part of our divorce settlement. His brother is executive of his estate and told me that this will no longer take place. Since my ex has passed, do I have a leg to stand on?

Brette's Answer: You need to talk to your attorney and determine what was court-ordered and enforceable against the estate.

Will I still be entitled to social security benefits if we're separated?

Sandra's Question: I am legally separated as of a month ago. If my spouse or I should die, is the other still qualified to receive social security benefits?

Brette's Answer: Legally separated is still legally married. The answer is yes.

How do we handle his settlement & disability pay if he dies after divorce?

Donna Asks: I'm divorcing after 20 years of marriage. He has been receiving a monthly check from a settlement and a disability payment from the VA. I do not want to take away his income, but recognize I may feel differently when I'm older and on a fixed income. After the divorce is final, would I have any legitimate claim to those accounts in the event of my husband's death? If so, would it be an 'automatic' transfer or do we need to include language in our divorce papers to cover that possibility?

Brette's Answer: It all needs to be done at the time of divorce. I would suggest you talk to a lawyer about your options. Good luck. (Similar questions were addressed on the following pages Divorce and Social Security and Divorce and Pensions).

Am I entitled to the remaining settlement balance if he dies?

Sheri's Question: My husband was receiving a settlement from an on the job injury, but he recently passed away. We were married at the time of his death. Am I entitled to the remaining balance of the settlement? I have power of attorney over him financially and medically.

Brette's Answer: His estate is entitled to the settlement. As his heir, it will come to you, unless his will designates otherwise. Talk with an attorney to make sure you are handling the situation correctly.

What if my ex dies before paying off the equity he owed me?

Samantha: We divorced five years ago. The home which was deeded to both of us is in Georgia. I presently live in another state. My husband was to pay; in monthly installments, the equity I was awarded by the Judge. A quit claim was recorded in the county which would only remove my name from the deed once equity was paid in full. My ex-husband died a week ago and the equity has not yet been paid in full. What legal alternatives do I have with ownership of the house now?

Brette: You need a lawyer. It's going to depend on how much is owed, how much he has in his estate, and if the home can be sold.

Will his estate honor the child support provision for college expenses?

Shawn's Question: If my deceased ex-husbands divorce decree was worded to pay for my daughters college education and child support, can I file a claim from my ex-husbands' estate?

Brette's Answer: No. Child support obligations end at death. Your child should be entitled to part of his estate, however.

Will the delinquent child support be paid from his estate?

Shawn's Question: My son’s father has passed away.  He was involved in a work accident.  His family has hired an attorney for wrongful death because of how he passed away. If there is money granted to the family can any of this be garnished to pay for the delinquent child support (which is a large amount)?

Brette's Answer: Child support can be collected against the estate. Your child could also be a party to the wrongful death case. You should consult your estate attorney.

His mother says I'll end up with nothing if he dies.

Ana's Question: We have been married for 15 years and my husband is terminally ill. My mother in law is helping take care of him at home. I cannot bear to be there because she is a very toxic woman, who is looking for any opportunity to kill the little relationship I still have with him. We have 3 properties, a lot of debt, and a business I run by myself. He wanted me to close it down but what I am supposed to do after he is gone? He is very cynical and I cannot tolerate his sarcasm. I know he is in pain, but if this drags on for 6 more months I don't think I could stand it. His mother wants to take him to Panama and claims I have no rights over him. I am not allowed to speak to his doctors. She has also mentioned she will see I end up with nothing. I would like to know what could happen legally if I leave him.

Brette's Answer: This sounds like an incredibly difficult and stressful situation. I think you need to see an attorney who is knowledgeable about your state divorce and estate laws. You want to be very careful not to take any action that will result in you losing any part of your inheritance. In general, spouses who are still legally married but living apart are treated as married for the purposes of inheritance, but I would not want you to do anything until you spoke with an attorney who knew your specific state laws and caselaw and could advise you about what to do.

Would his mother get everything if she has power of attorney?

Question: My husband joined the marines before we got married and he made his mom his power of attorney. If something happened to him and he passed away, would that money go to me and our kids or his mom?

Brette's Answer: A power of attorney gives authority to manage financial and legal affairs during life. When a person dies, his or her assets are divided according to a will. If there is no will, then state statutes decide how assets are distributed.

Will his 2nd wife get half the profits if he dies before the house sells?

Joyce's Question: As soon as our divorce was final my husband remarried. We have the house up for sale and we split it 50/50 -- if he dies before the house is sold will I have to split the sale with her?

Brette's Answer: If he dies, his ownership portion would go to his estate; unless you divorce decree says otherwise.

If a will is prepared during a separation, will it be honored?

Angela's Question: I have a terminal illness (less than a year) and have been separated from my husband for approximately 5 years (not legally). We have quite a few assets which I've had no control over. I have no Will at this time. How can I be sure my 2 adult children get my fair share of our assets at the time of my death? If I prepare a Will now, will that be honored?

Brette's Answer: Yes you can prepare a will at any point while you are of sound mind. It is the best way to ensure that your wishes are carried out. You need to see an attorney about this because many states have a law that requires that a spouse receive a certain percent of your estate even if you try to write him or her out of the will.

If I die before the divorce is final will that void my updated will?

Christine's Question: I have filed for a divorce from a very abusive spouse. I have made a will to leave everything to my 4 adult children. If I die before the divorce is final, does that void the will or will it stand up in court?

Brette: In most states the surviving spouse has a right of election against the will - which means he or she cannot be disinherited and is entitled to a statutory percentage of the estate. The spouse can waive this though. However, it is also true that a pending divorce may be considered by the court and change the way inheritance is handled.

Does the beneficiary of my Dad's Will have any claim to Mom's estate if they were separated?

Terri's Question: My mom died six years ago without a will, leaving behind an estate of $110,000 (current value). My father died the following year with a will. His will made no specific claims to my mom's estate. My parents had been living separately for over 40 years before their respective deaths, though they were still legally married. Can the executor of my father's will (who also happened to be the main beneficiary of his estate) stake a claim to a share of my mom's estate?

Brette's Answer: He was an heir of intestate succession if they were still married. You should talk to an attorney to make sure their separation did not have an effect under state law.

Can my Dad stop his wife from getting his estate when he dies?

Rene's Question: My father has been separated for more than eight years to his second wife. They are still married though. She left him high and dry and now is waiting for him to die to claim his property. How can he prevent this?

Brette's Answer: He needs to consult an attorney. It is possible to write a will specifying distribution of the assets, however, most states have laws that require the spouse to get a specific amount of the estate no matter what.

Can we close Dad's accounts and transfer his car title without telling his wife?

Britt's Question: My dad recently passed away. He told all of us that he had divorced his 3rd wife, but it appears he may not have filed the paperwork. He also never changed his life insurance policy so we know she will be getting that money. My question is, what about the rest of his things like his bank account and car? Is she entitled to that? Is it illegal for us to close his accounts and transfer the title of the car without telling her?

Brette's Answer: You can't do any of that without a court order - the bank and the DMV won't let you. If he had a will, it will be probated. If not, the estate will go through the administration process according to state laws. Generally, the wife inherits a large portion.

Will the wife or the fiancé get the estate if he died before the divorce was final?

Doreen's Question: I have a friend who just lost her fiancé in a car accident. He was separated from his wife, but not divorced. Now that he has passed away, does she have any legal rights over his Estate or does his wife? I am not sure if he ever made a Will, he was only 29 and most people don't think about wills at that age.

Brette's Answer: If he had no will, the fiancé gets nothing. If there is a will, the terms of the will are followed; however the wife may have a right of election against it if she is not included. If there is not will, assets are divided according to state intestacy statutes which means the wife would get it all, unless there are children who would share in the estate.

Can I claim I'm a widow if we were divorced years ago?

Question: I got divorced 27 years ago. Now my ex-husband is dead. Can I write widow on my important documents or not?

Brette's Answer: No. You are divorced. You are only a widow if you are married at the time of the death.

Can I request any of his assets if we were divorced?

Ann's Question: My ex recently passed leaving over $6,000,000 in assets and $400,000 from life insurance for me. I am and have been physically disabled. Would it be bad or unheard of for me to request more of his assets?

Brette's Answer: If you are divorced, you have no legal right to his estate, other than to enforce existing orders of alimony, child support, or property division from the divorce. 

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