Death in the Midst of a Divorce. What Happens?

Ever think about what happens if you die in the midst of your divorce?   How does that affect the divorce action, alimony, and property division?  Here in short are the resulting possibilities:

(1)  Generally no divorce can occur if one spouse dies prior to the court’s judgment of divorce.  In this situation the spouses are still married post-death;

(2)  However, pending alimony claims at the time of death do not bar the surviving spouse from seeking temporary alimony or support from the estate of the deceased spouse, but only computed for any time period ending up to the date of the deceased spouse’s death.   In other words, no alimony computed and payable for the time period following the death;

(3) Any other post-death property or benefits for the surviving spouse will be based on (i)  the estate planning documents the deceased spouse had in place for the surviving spouse;  and (ii) the statutory surviving spouse provisions (called years’ support under Georgia law;  see O.C.G.A. Section 53-3-1).   These become the post-death claims against the estate for the surviving spouse rather than post-death alimony or property division;

(4) As to the deceased spouse’s estate planning documents, in this situation the surviving spouse is still technically married to the deceased spouse.  Therefore, the deceased spouse’s estate planning documents — to the extent they include benefits or provisions for the surviving spouse — will most likely still apply; and

(5) For couples with a prenuptial agreement, the agreement needs to contemplate the above situation if death occurs mid-stream in the divorce proceeding.   In my experience many prenuptial agreements do not adequately anticipate this situation.

Essentially, the prenuptial agreement needs to provide that if the required payment or division is required under the prenuptial agreement, then both spouses agree under the terms of the prenuptial agreement that they each will be deemed to have predeceased the other so that no other estate planning documents apply.   In other words the prenuptial agreement needs to anticipate and guard against both the prenuptial agreement and the other estate planning documents applying together.   It should be one or the other.

Narrowing this point further.   The prenuptial agreement may provide for its required payment or division of property under the terms of the agreement even if death occurs during the divorce proceeding (triggered, for example by the filing of the divorce action by one of the spouses).   This is fine as long as the agreement is clear on this point.

But, under all circumstance to avoid double payment under the prenuptial agreement and the deceased spouse’s estate planning documents, the following example of a provision in the prenuptial agreement can mandate the above either-or result:

9.1.1.   If the payment is required between the parties under subparagraph 7.1.1 [of this prenuptial agreement], both John and Jane shall as a result of such payment obligation be deemed to have predeceased one another as of the date of the death of either one of them with the result that John and Jane shall each be treated as having  predeceased one another for all other purposes (including predeceased for all purposes as to any estate planning documents of either John or Jane applicable at their respective deaths).

For Georgia readers, and as general background, the following case deals with this topic:  Davenport v. Davenport, 255 S.E.2d 695, 243 Ga. 613 (Ga., 1979).

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