Death can complicate the divorce process. If your spouse passes away while you are in the middle of your divorce, the court may take a number of actions to remedy the situation. The court may dismiss your case or transfer its jurisdiction. If your case involves complex matters, such as child custody, the court will adhere to certain rules in the event of a spouse’s death.
Jurisdiction Issues After a Spouse’s Death
You cannot file for divorce from someone without his or her consent, which he or she cannot provide if he or she is deceased. In many cases, the court will not grant a divorce after a spouse passes away. Under these circumstances, a divorce is unnecessary since you would be a widow or widower and legally unmarried.
Asset division after your spouse’s death will likely involve a shift in jurisdiction, however. Depending on where you filed for divorce, the family court may retain the right to divide your former spouse’s assets between you and his or her surviving heirs. In other states, the probate court will have jurisdiction over dividing your spouse’s possessions.
Since a divorce would not occur when a spouse dies, you may retain the right to inherit assets from the deceased’s estate. However, the court will need to divide your spouse’s property according to his or her will and the named beneficiaries on other assets, such as insurance policies. If your spouse left you no assets in his or her will, you will not inherit any property. If no will exists, you may be eligible for a portion of the estate.
What About Child Custody?
If you and your spouse are in the middle of a custody arrangement when he or she passes away, you will obtain sole custody over your children. The court cannot enforce custody or visitation with the deceased’s family members unless the court finds you unfit to care for your child. You will have sole discretion over your children’s contact with your former spouse’s family, but some states do allow grandparents and other family members to petition the court for visitation rights.
Your former spouse’s family members may file a court action if they believe you are unfit to have custody over your child. Abuse or neglect may be grounds for a court to transfer custody of your children to the deceased spouse’s family or in foster care.
Do You Need a Lawyer After Your Spouse Dies?
If your spouse dies in the middle of a divorce, your case will be subject to a number of important considerations. To protect your best interests and ensure you receive any assets you may be eligible for, speak with your divorce attorney immediately.
Your attorney will understand the laws surrounding divorce, asset division, and child custody following your spouse’s death, even if you file in a different state than where you live. He or she will inform you on how to proceed with your case, whether or not you are eligible for a portion of the estate, and how to handle any child custody issues you may face.
If he or she is eligible to practice in the state where you are filing for divorce, your divorce attorney in Indianapolis can represent your best interests during the process. Your lawyer will take steps to ensure that your actions work toward a more favorable outcome. If you have not contacted your attorney already, schedule a consultation to discuss your divorce and strategize your next steps.