What Happens if a Spouse Dies During Divorce?

 Posted on January 15, 2020 in Divorce

Due to the long-winded nature of many divorces, there are cases where a spouse passes away before the divorce is final. In Illinois, when a party in a divorce dies, the case is dismissed. The court requires two living parties to a divorce, so if only one is alive, there is no divorce.

Additionally, the surviving spouse is not a divorcee, but rather a widow. But what else changes when a spouse dies during divorce?

Division of Marital Assets and Property

Since the divorce action becomes null and void, there is no division of marital assets and property. The surviving spouse is entitled to all marital assets and property unless stated otherwise in a prenuptial agreement or in the deceased spouse's will. Illinois acknowledges a prenuptial agreement as having precedence over a will, meaning whatever was stated within the prenuptial agreement is taken into account first. Traditionally, marital assets and/or property are passed on to children, brothers, sisters, or parents of the deceased party.

However, the death of one spouse also means the surviving spouse is now responsible for any remaining joint financial liabilities and/or debt.

Pension

It is possible you may receive your deceased spouse’s pension depending on whether they chose a lump sum payout or a monthly payout, also known as a "life annuity." The majority of monthly payout plans have what is referred to as 'joint and survivor' options. This option expands the pension's lifetime benefit by continuing to pay the decedent's spouse after the decedent dies.

If the surviving spouse should enter in a new relationship or remarry, the pension benefit will not be affected.

Child Custody and Parental Responsibilities

Any child custody or parental responsibilities terminate, as do any child support orders. The surviving spouse is responsible for any children born of the marriage and will have sole custody unless decided otherwise by the court.

Visitation rights for the deceased spouse's family (i.e. grandparents, aunts, and uncles) are not automatically granted. It is up to the surviving spouse whether they want to allow the deceased spouse's extended family to be part of their child's life. If the surviving spouse refuses to allow the grandparents to spend time with the child, Illinois law does recognize grandparents' rights and the grandparents could file a petition in family court for visitation.

 The Importance of Pre-Divorce Preparation

Planning for the worst is the smartest and safest option. Until your divorce is final, there may be certain assets you have that you do not want your soon-to-be-ex to get their hands on in the event of your death before the divorce is granted. Speak to your divorce attorney to find out what steps you may be able to take while the divorce is in process.

Contact a DuPage County, Illinois Divorce Attorney Today

If you are considering divorce, no matter what your current circumstances, contact a skilled Elmhurst, Illinois divorce attorney at Weiss-Kunz & Oliver today. We will walk you through your rights and responsibilities during and after your divorce. Call us at 312-605-4041 to schedule a consultation and find out how we can help.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+IV&ActID=2086&ChapterID=59&SeqStart=3800000&SeqEnd=5300000

https://money.cnn.com/retirement/guide/pensions_pensions.moneymag/index7.htm?iid=EL

http://www.ilga.gov/legislation/ilcs/documents/075000050K602.9.htm