Posted on October 23, 2018

What Happens If My Husband Or Wife Dies During My Divorce?

Divorces can take years and there is always the possibility that a party in a divorce case may die during the divorce.  If a spouse dies during the divorce, the divorce will not be finalized and then the marital estate remains unsettled and undistributed.

What Happens When A Spouse Dies During An Illinois Divorce?

In Illinois, when a party dies during a divorce, the case is dismissed at the next court date. When there are not two living parties to a divorce, there is no divorce.

“Generally, the death of a party during the course of divorce proceedings has been held to abate the action.” In re Marriage of Davies, 95 Ill. 2d 474, 478 (Ill. 1983)

Under the common law, “a dead person is a nonexistent entity and cannot be a party to a
suit.” Relf v. Shateyeva, 2013 IL 114925

When someone dies during a divorce there is little left to do in the divorce court.

All the orders entered before a divorce is finalized are temporary. Temporary orders become null and void by operation of law when an Illinois divorce case is dismissed. Death equals dismissal in divorce.

“A temporary order entered under this Section:…terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed.” 750 ILCS 5/501(d)(3)

To get around this dismissal, some orders such as entry of a QDRO can be entered in the past via a nunc pro tunc order. Wertz v. Christopoulos, 2017 IL App (1st) 160560-U

When a death happens during a divorce there are still numerous unresolved issues regarding the marital estate still need to be addressed and resolved.  These issues can no longer be resolved in domestic relations court and are addressed in probate court.

Illinois’ probate law works entirely differently from Illinois’ domestic relations law. Probate law is not concerned with marital versus non-marital assets. Illinois probate law says that you’re not divorced until you are finally divorced. In Illinois, you are the spouse of the deceased until the divorce is finalized and will be treated as a full spouse under the law so long as you’re married.

What If Your Spouse Did Not Leave A Will?

If the deceased spouse did not leave a will the legal term for that situation is “dying intestate.”

In Illinois, the law regarding spouses that die intestate is straightforward.

“If there is a surviving spouse but no descendant of the decedent: the entire estate to the surviving spouse.” 755 ILCS 5/2-1(c)

If your spouse has no children and is still married to you, you get everything your spouse had in their name or possession

If your spouse has children (it does not matter if they are your children or children from a different relationship your spouse had), the rule is still quite simple:

“If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent’s descendants per stirpes.” 755 ILCS 5/2-1(a)

“Per stirpes” means the children have to figure out who gets what amongst themselves. But, the surviving spouse gets half no matter which kid gets what.

What If Your Spouse Did Leave A Will?

If the deceased husband or wife did leave a will, then the spouse’s property will be distributed according to the will’s instructions…unless you object.

The surviving spouse will have the option to “renounce the will.”  Meaning, if a surviving spouse disagrees with the way the deceased’s will allocates the deceased’s property the surviving spouse can choose a statutorily mandated alternative allocation.

“If a will is renounced by the testator’s surviving spouse, whether or not the will contains any provision for the benefit of the surviving spouse, the surviving spouse is entitled to the following share of the testator’s estate after payment of all just claims: 1/3 of the entire estate if the testator leaves a descendant or 1/2 of the entire estate if the testator leaves no descendant.” 755 ILCS 5/2-8(a)

What If Your Spouse Declared Someone Else The Beneficiary Of Their Retirement Benefits?

Most 401k or retirement plans require a spouse to sign a waiver to allow you to designate a different beneficiary who is not your spouse. If you have signed a waiver, then the beneficiary status trumps whatever a will says.

At this point we are beyond my focus: family and divorce law. I would strongly recommend a probate attorney to investigate your rights in this scenario.

What if your spouse named someone else the beneficiary of his or her life insurance?

If your spouse named someone else a beneficiary or their life insurance policy then the beneficiary will get the proceeds of that policy no matter what any statute or will says.

“The designation in accordance with the terms of any insurance…shall not be subject to or defeated or impaired by any statute or rule of law governing the transfer of property by will, gift or intestacy” 755 ILCS 30/1

Depending on the facts, it may be possible to get a marital interest in your deceased spouse’s 401(k) when designated to another party via a constructive trust.

What If Your Spouse Died In The Middle Of An Illinois Divorce

When either spouse dies during the pendency of a filed divorce, the filed divorce is closed. All of the divorce law will become inapplicable as the case moves to probate court. The probate court does not care about what is equitable (fair). The probate court just follows the will or the statutory disbursements.

“[I]t is well settled in Illinois that the death of either party to a divorce action prior to final judgment deprives the circuit court of jurisdiction over all aspects of the marriage relationship. Thus, if [a spouse] were to die during the pendency of the divorce proceedings, the assets…would no longer be within the divorce court’s jurisdiction and would instead be subject to probate law which is concerned not with equitable distribution of property, but only with property rights.” In re Marriage of Centioli, 781 NE 2d 611 – Ill: Appellate Court, 1st Dist., 4th Div. 2002

What if you are already divorced and your ex-husband or ex-wife dies?

Frequently, where a divorce is finalized but some issues will be “reserved.” Reserving an issue essentially means that both parties agree to deal with the reserved issues later. For example, I reserved the sale of every house in divorces from 2008 to 2011 because the real estate market was so bad at the time that a forced sale would have hurt all parties.

If a deceased ex-spouse had a will, the former spouse is automatically cut out of the will even if the will has not been updated to omit the ex-spouse.

“No will or any part thereof is revoked by any change in the circumstances, condition or marital status of the testator, except that dissolution of marriage or declaration of invalidity of the marriage of the testator revokes every legacy or interest or power of appointment given to or nomination to fiduciary office of the testator’s former spouse in a will executed before the entry of the judgment of dissolution of marriage or declaration of invalidity of marriage and the will takes effect in the same manner as if the former spouse had died before the testator.” 755 ILCS 5/4-7(b)

If the divorce has reserved issues and one party subsequently dies, it is possible to go back to divorce court.

“The death of a party subsequent to entry of a judgment for dissolution but before judgment on reserved issues shall not abate the proceedings.” 750 ILCS 5/401(b).

So, unresolved divorce issues can proceed against the estate of the deceased. I have never seen a post-death divorce action in an Illinois domestic relations court and would expect the divorce court to refer you to Probate court despite this clause in the domestic relations statute. Specifically, almost every divorce decree contains a clause saying that the parties waive any claim against the other party’s state.

The Probate courts deal with reserved matters and joint tenancies that still exist after the divorce (almost always land or accounts held in both parties’ names.

“[W]hen a sole owner of a bank account adds an apparent joint tenant to the account, the law presumes that the original owner intends a gift.” In re Estate of Shea, 364 Ill. App. 3d (2006) at 968–69

Joint tenancies allow for a right of survivorship…even if you’re already divorced

“[A] divorce decree alone does not effect a severance of a joint tenancy” Matter of Coleman’s Estate, 77 Ill. App. 3d 397, 400 (1979)

But a Marital Settlement Agreement can eliminate a joint tenancy. A “joint tenancy [can] been terminated by the [marital settlement] agreement as set forth in the decree” In re Estate of Woodshank, 325 NE 2d 686 – Ill: Appellate Court, 3rd Dist. 1975

“An agreement to sever itself operates to effect a severance, and the intervening death of one of the joint tenants will not defeat the severance even though the agreement is not performed.” Thomas v. Johnson, 12 Ill. App. 3d 302, 305(1973).

As to children, if one party dies, the surviving parent has all of the parenting time and all of the parenting responsibilities.  The parents of the deceased party may petition for visitation with their grandchildren once their own child has passed.

Additionally, most obligations stemming from a divorce will end upon the death of a party.

Maintenance (formerly known as alimony) always stops upon death of either party.

“[T}he obligation to pay future maintenance is terminated upon the death of either party.” 750 ILCS 5/510(c)

However, death does not release the obligation to pay maintenance if an order for life insurance had been entered earlier in the case. “Any termination of an obligation for maintenance as a result of the death of the obligor, however, shall be inapplicable to any right of the other party or such other party’s designee to receive a death benefit under such insurance on the obligor’s life.” 750 ICS 5/510(c)

Per the statute, Child support may continue after death as well but there’s no life insurance requirement. This would be a claim against the estate of the deceased parent.

“An existing obligation to pay for support or educational expenses, or both, is not terminated by the death of a parent. When a parent obligated to pay support or educational expenses, or both, dies, the amount of support or educational expenses, or both, may be enforced, modified, revoked or commuted to a lump sum payment, as equity may require, and that determination may be provided for at the time of the dissolution of the marriage or thereafter.” 750 ILCS 5/510(d)

An important thing to know about child support after the death of a parent is that the claims period is so short. You have the lesser of (i) 6 months from publication of the notice to creditors normally filed shortly after the case or (ii) 2 years from the date of death. Given the short time frame to file a claim, the living parent needs to move quickly to protect the rights of the minor children.

You can even request the court to order the deceased parent’s estate to pay for a child’s college expenses. “Upon a petition filed before or after a parent’s death, the court may award sums of money out of the decedent’s estate for the child’s support or educational expenses, or both, as equity may require.” 750 ILCS 5/510(e)

The child can also file for contribution to their college expenses but only if both parents are dead. “In the event of the death or legal disability of a party who would have the right to file a petition for contribution, the child of the party may file a petition for contribution.“ 750 ILCS 5/513(i)

If your spouse’s health is poor and you’re concerned they may die before the divorce is finalized, triggering all the probate laws we’ve discussed above you can ask an Illinois court to bifurcate the divorce.  An Illinois divorce court will grant you the actual divorce but reserve all the other financial issues. Bifurcations are granted only in extreme circumstances like a pending death.

If a spouse dies after a judgment is entered with reserved issues, the reserved issues can still be pursued by the dead spouse’s estate after their death

“The death of a party subsequent to entry of a judgment for dissolution but before judgment on reserved issues shall not abate the proceedings.” 750 ILCS 5/401(b)

If your spouse has passed or you’re concerned that your spouse may soon be deceased and you’d like to learn more, contact my Chicago, Illinois law office to schedule a free consultation.

If your spouse has passed and you need to initiate probate proceedings please contact attorney Mario Correa.  Mario’s office is just 6 miles from my office.  Directions below:

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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