What happens if a spouse dies before a final decree of divorce or dissolution is entered by the court? In Colorado, the law dictates that a pending divorce case does not survive after the death of one spouse. Generally, the divorce action immediately ends upon the party’s death.
Colorado’s statutory framework infers that the death of a spouse prior to the entry of a divorce decree terminates the marriage, and that the court no longer has jurisdiction to proceed with the divorce case. The object pursued by a divorce decree was accomplished by the death of one of the involved parties, and there is no longer a status of “marriage” upon which the final divorce decree may operate.
When it comes to the properties and other assets involved, the surviving spouse inherits whatever the deceased spouse left in his or her will. If there is no will, the surviving spouse likely inherits majority or possibly all the deceased spouse’s assets. Properties that are jointly titled becomes the spouse’s property automatically.
Though the law clearly states that a divorce action ends upon the death of a spouse, relevant issues of parenting and child custody may still need to be addressed by the court when minor children are involved—particularly if the surviving spouse is not willing or able to adequately care for or have custody of the children. Numerous issues of family law may thus come into play. It is important, therefore, to speak with a knowledgeable family law attorney.
If you wish to limit how much of your assets or property your spouse could receive if you pass away before the divorce becomes final, it would be best to do some estate planning before or during the divorce.
If you have minor children, are being paid maintenance, have outstanding joint debts, or are still owed settlement money, it is highly recommended that you purchase a life insurance policy on the life of your ex-spouse before the divorce is finalized. The policy’s face amount should be large enough to cover the obligations of your ex-spouse to you or your creditors.
Death after divorce
After the divorce becomes final, you should also take time to plan for your death, as well as your spouse’s death. This is particularly important if you have children. Remember to change the beneficiaries of your life insurance policies, as well as retirement and pension plans. You may also want to revisit your will and other estate planning documents.
Note that if your spouse passes away while he or she is paying maintenance, the obligation to pay support ends. The obligation to pay child support, however, does not necessarily end as the surviving spouse may opt to ask the estate for a family allowance.