Divorce after death in Florida?

Joining an estate to a dissolution proceeding

If a spouse dies during a divorce proceeding, you can imagine the many legal and personal issues that can arise. To answer the above question, it is very rare in Florida to get divorced after one party has died after the divorce was filed, but before the court issues a final order that the parties are divorced.

Abatement

Normally, in this situation, the divorce case in court abates, meaning that it ends. As Florida cases say, when a spouse dies, the marriage automatically ends, so the concept of divorce becomes meaningless and unnecessary.

Practically, the court will dismiss the divorce, unless there is an extreme reason for an exception, which is rare. For example, in one case, the court kept the divorce open because the surviving spouse was an unfit parent and child custody had not been determined before the other spouse’s death. A third party was given the responsibility for the child in that case.

Florida courts have decided that if there is a spousal death during a divorce, any court orders that were temporary or interlocutory, meaning issued to handle the family’s affairs only until the divorce was final, are extinguished and do not survive the death or the dismissal of the divorce proceeding.

Another issue that can arise is whether certain issues normally decided in the divorce can be determined by provisions of prenuptial, postnuptial or marital settlement agreements. The answer is that it depends. Florida courts seem to look at whether the spousal contract seems final and not preliminary or temporary.

Substitution of party

Florida Family Law Rules of Procedure 12.260 provides that if “a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.” So, if a spouse dies and the divorce is abated, no party would be substituted for the deceased spouse because the divorce would be “extinguished” by abatement and dismissal.

However, Florida courts explain that there may be times when the court issues the final order that the parties are divorced but leaves certain issues for resolution after the divorce. This is likely to concern equitable division of marital property. In such a case, the divorce is over, and the parties are legally divorced, but they might still need to decide what property belongs in the marital estate to divide between them as well as what division would be equitable.

In such a situation, it may be appropriate to appoint the personal representative of the deceased spouse’s estate, since the remaining questions about what property each spouse would have owned because of the divorce will determine what property passes to the deceased spouse and flows into his or her estate. This property will be divided according to the deceased spouse’s will or to the Florida state law of intestacy, if no will, and distributed to the deceased spouse’s heirs and beneficiaries.

These cases can raise complex and difficult factual and legal issues, so this blog provides general guidelines. Each case may differ depending on the unique circumstances of time of death, progress of the court proceeding, presence of spousal agreements and others.

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  • The Law Office of Daniel E. Forrest represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.
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