Incapacitation or Death of a Spouse During A Divorce

They say nothing is certain other than death and taxes, but while taxes are definitely part of the divorce process, death normally is not. If your spouse dies or becomes incapacitated during your divorce case, it certainly changes your path forward. There are important considerations to keep in mind in either scenario.

Incapacitation of a Spouse

Should your spouse become incapacitated due to illness or injury before you are divorced, there are several possible pathways for how your case and your life will move forward:

  1. If neither of you has actually formally filed for divorce and you do not wish to file for divorce, you remain married. You have the option of becoming your spouse’s caretaker and managing their medical care as well as their financial and business affairs if your spouse named you as their representative for medical and financial matters. Note that if you do not want to act as caretaker, you will still be financially responsible for them if you still co-own assets.
  2. If you want a divorce, but one has not been filed, you can go ahead and file for divorce. In this situation, you would not continue to be your spouse’s caretaker. If you are the person they named in their estate planning documents to represent them in case of incapacitation, then the court will appoint someone else to represent them. If they do not have estate planning documents, the court will select a guardian to represent them.
  3. If you filed for divorce before your spouse became incapacitated and you have decided you no longer what the divorce, you can withdraw the divorce. If you were selected as your spouse’s medical and financial representative, you could manage their affairs moving forward.
  4. If your spouse filed for divorce before becoming incapacitated or if you filed for the divorce and would like to proceed with it, your spouse’s estate planning documents will come into play. If they have a health care directive and powers of attorney in place, most of their affairs will be managed in accordance with those documents. Your state may allow the person named in the power of attorney to act on your spouse’s behalf in the divorce.
  5. In all other situations, the court will appoint a guardian who will manage your spouse’s affairs and appear on their behalf in court for the divorce.

Death of a Spouse

If your spouse should die before your divorce is final, there are several possible outcomes.

  1. If the divorce has not yet been filed, there will be no divorce and you will inherit under your spouse’s will and/or trusts or as per your state’s intestacy statute (if there are no estate planning documents in place).
  2. If the divorce has been filed but has not been finalized, two scenarios may apply. It is important to talk to your attorney about what outcome is better in your situation. One option is that the divorce proceeding ends and you inherit through the will/trusts or the state intestacy laws as a surviving spouse. However, in some states, if your net award through the divorce would be more than your net award through the estate planning documents, then the court may agree to award you what you would receive had the divorce been completed before your spouse’s death.

    So, for example, if your spouse changed their will before their death and left you with nothing, but under your state divorce property distribution law, you would be entitled to half the marital assets, the court could award you half of the marital assets. Note, however, the court does not actually grant the divorce, so you technically remain a surviving spouse.

  3. In some situations, divorce can be bifurcated. This means the court legally terminates the marriage and then continues to decide issues such as alimony, child support, or property distribution. If your divorce was bifurcated before your spouse died and the marriage was terminated at that point, then you are legally divorced.

    However, in a bifurcation situation, the court grants the end of the marriage but retains the authority to finish the remaining decisions in the case, including property distribution. If your spouse passes away after the termination of the marriage, the court would complete the property distribution. Note that if you were awarded alimony or spousal support prior to the death, that is terminated upon the death of your former spouse. If the divorce is bifurcated and your former spouse dies before an alimony award is made, then alimony cannot be awarded after their death.

Implications of these Laws

All of this highlights the importance of making sure you talk with your attorney about your own possible death or incapacitation, particularly if you are dealing with serious health issues. Your attorney may advise you as to how to update your estate planning documents during the pendency of the case and then again on how to update them once the divorce is final so that you can preserve as much of your assets as possible.

Additionally, if you do not wish for your spouse to become your caretaker should you become incapacitated, it is essential that you create an advance directive, powers of attorney, and possibly trusts to ensure that your spouse does not have the authority to manage your health care decisions or your financial life should you become unable to do so.


Dror Bikel

Dror Bikel founded and leads Bikel Rosenthal & Schanfield, New York’s best known firm for high-conflict matrimonial disputes. A New York Superlawyer℠ and twice recognized (2020 and 2021) New York Divorce Trial Lawyer of the Year, Dror’s reputation as a fearsome advocate in difficult custody and divorce disputes has led him to deliver solid outcomes in some of New York’s most complex family law trials. Attorney Bikel is a frequent commentator on high profile divorces for national and international media outlets. His book The 1% Divorce - When Titans Clash was a 5-category Amazon bestseller.

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