What happens if your spouse dies while the divorce is still pending?

Legal Lotus - Family and Trial Attorneys

In Florida and most states, if your spouse passes away and the divorce is not finalized then the “personal representative” of your estate steps in and finalizes the divorce.

A personal representative is the person, bank, or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate. The personal representative has a legal duty to the estate to administer the probate estate in accordance with Florida law.

Duties Personal Representative must do under Florida Law:

The personal representative must:

  • Identify, gather, value, and safeguard the decedent’s probate assets.
  • Publish a “Notice to Creditors” in a local newspaper to notice potential claimants to file claims in the manner required by law.
  • Serve a “Notice of Administration” to provide information about the probate estate administration and procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
  • Conduct a diligent search to locate “known or reasonably ascertainable” creditors and notify these creditors of the time by which their claims must be filed.
  • Object to improper claims, and defend suits brought on such claims.
  • Pay valid claims.
  • File tax returns and pay any taxes properly due.
  • Employ professionals to assist in administering the probate estate, for example, attorneys, certified public accountants, appraisers, and investment advisers.
  • Pay expenses of administering the probate estate.
  • Pay statutory amounts to the decedent’s surviving spouse or family.
  • Distribute probate assets to beneficiaries.
  • Close the probate estate.

What happens if there is no Will?

If the decedent did not have a valid Will, the surviving spouse has the first right to be appointed by the judge to serve as a personal representative. Of course, it’s different there is divorce action pending! If the decedent was not married at the time of death, if the decedent’s surviving spouse declines to serve, or if the spouses are in divorce proceedings, the person or institution selected by a majority in interest of the decedent’s heirs will have the second right to be appointed as personal representative. If the heirs cannot agree among themselves, the judge will appoint a personal representative after a hearing is held for that purpose.

Conclusion

So bottom line, if a spouse dies during divorce proceedings, the personal representative of the spouse that died steps in to complete the divorce.

The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.

Have more questions? Let us know by sending an email to: questions@legallotus.com and we will do our best to develop content to provide you with direction and insight!

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