What Happens if My Spouse Dies During a Divorce?

Resolving a divorce could take months, sometimes years to finalize – especially in the event of a contested divorce. So, what happens when one spouse suddenly dies during the middle of the divorce process? According to Florida law, you cannot obtain a divorce after your spouse has died. The divorce will be canceled, you must file a Suggestion of Death, and, depending on the will, your marital assets will be allocated through probate court.

What if the Deceased Left a Will?

If the deceased spouse left behind a valid will, the surviving spouse has two options:

  • Live with the terms of the will or
  • Choose “the right to elective share” also known as a right to a portion of the estate

What elective estate means varies according to what assets the deceased owns. It would be advisable to consult with a probate attorney to determine how to navigate these issues.

What if the Deceased Did Not Leave a Will?

If the deceased did not leave a will, he/she has died intestate. The surviving spouse’s share of the estate will vary according to the situation and if children are involved. If there are no surviving descendants, the spouse will receive the entire intestate estate. If there are one or more surviving descendants of the deceased who are not lineal descendants of the surviving spouse, the surviving spouse will receive one-half of the intestate estate.

What Happens to the Marital Estate?

The marital estate, known as the homestead in Florida, cannot be granted to anyone but the spouse if there are no minor children no matter what the will states. If there are minor children involved, the spouse will be granted the house until he/she dies, whereupon then children would then get the house.

What Are the Children’s Shares?

Your children will receive an intestate share of your spouse’s property if he/she dies without a will in the state of Florida. This depends on the number of children you have, if you are married, and if the deceased spouse had any children from a previous marriage. Florida requires that these children be your legal children. For instance, stepchildren or foster children you never legally adopted are not considered your legal children.

What Happens to Alimony?

Florida law mandates that the death of a spouse automatically terminate the payment of alimony. As spousal support is a contract between two spouses, if one dies, this contract becomes void.

Consult with a Reputable Attorney from Our Firm

If you have questions about your divorce situation, it is advisable to consult with an experienced attorney familiar with such proceedings. At Dale L. Bernstein, Chartered Law Office, our attorney has over three decades of experience helping clients successfully navigate their divorce.

Reach out to our office onlinetoday or call us at (727) 312-1112 to learn more about scheduling an initial consultation.


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