What Happens If a Spouse Dies During the Divorce Process?

With the increasing prevalence of “gray divorces,” a term commonly used to describing divorces involving older adults, spouses and attorneys sometimes must deal with the issue of what should happen if one of the parties involved passes away before the divorce is finalized. This, of course, can add some complications to the process.

In most cases, a court will not grant a pending divorce after one spouse dies, as there is no need to proceed any further. The death officially ends the marriage. However, there is still the issue of what happens to the couple’s shared assets and debts. This may involve determining whether the assets in question fall under the rules of probate.

• Non-probate assets: In New York, like every other state, there is a difference between probate and non-probate assets upon a person’s death. Non-probate assets, such as retirement accounts or life insurance proceedings, pass directly to a named beneficiary. Regardless of the state of your divorce, you will still inherit the benefits of these plans if you are still the named beneficiary.

• Probate assets and estate: The rest of the deceased assets will pass through the probate process, except for any assets passed through a trust. You could still inherit them through laws of intestate succession if your spouse did not have a will, or even if you were listed in the will.

Before you file for divorce, speak with an attorney to determine what you need to do to change your estate plan and prevent assets from inadvertently being passed to your spouse in the event of your death during a divorce. To learn more, meet with a knowledgeable Long Island divorce lawyer at Bryan L. Salamone & Associates.