In our COVID-19 world, many people are facing the terrifying notion of their own mortality and the mortality of their spouse.
On January 5, 2021, The Atlantic published metrics regarding the already 350,000 coronavirus deaths in the U.S. Indeed, due to the pandemic, “roughly 3.1 million Americans have lost a close relative to COVID-19.” Further, “on average, each person in the U.S. who has died from COVID-19 was deprived of about 13 years of life. People under the age of 65, according to estimates, account for 45 percent of the total unlived years.” With these disturbing statistics, it is more important than ever to understand how a spouse’s death during the divorce proceeding may impact the divorce itself. Below are some facts to illuminate this dark issue:
Death Dissolves the Marriage. A spouse’s death after the commencement of the divorce action, but before the entry of the divorce judgment, abates the divorce proceeding and divests the court of all of its powers to rule on any issues not yet ruled upon, including property rights, support, custody, and attorney’s fees and costs. This means that when a spouse dies during the divorce proceeding, the court can no longer make any orders regarding any issues related to the divorce.
Death of the Spouse Does Not Affect Orders Already Entered. While the death of the spouse ends the divorce proceeding, the family court does retain its power to enforce rights already adjudicated before the spouse’s death. Thus, if the court, for example, reserved jurisdiction over the issue of attorney’s fees before the spouse died, the court may still make orders on the issue of attorney’s fees following the spouse’s death.
Court Can Make Orders Regarding Reserved Issues After Entry of Judgment Terminating Marital Status. If the spouse dies after the entry of judgment only terminating marital status and reserving jurisdiction to decide the remaining issues, the court can still make orders regarding the remaining issues in this case. Under these circumstances, the procedure is to substitute the personal representative of the deceased spouse as a party to the still-pending action so that the remaining issues can be decided under the Family Code.
The untimely death of a spouse will definitely impede a divorce proceeding. However, if the death of the spouse is somehow anticipated including the more recent risk of death from COVID-19, it is important to discuss this serious circumstance with a family law attorney to determine what can be done to protect the surviving spouse’s rights. In this pandemic, considering these serious and morbid issues can be difficult, but is an important issue worthy of both reflection and attention.