Divorce changes everything in two people’s lives. In the midst of divorce proceedings that stretch on for months or even years, circumstances can even change while the couple awaits the final decree.

Sometimes while a divorce is playing out in court, one of the spouses dies. This type of event is more common than one might assume.

Death stops divorce proceedings

When couples divorce, one spouse “files for divorce,” an action that opens a case with the family court. The other spouse files a response with the court, and the case is officially underway.

From then, the parties work toward the resolution of issues involving things such as the division of financials and property, the allocation of support payments, and the determination of child-related matters.

These issues take time to resolve, as the divorcing couple communicates directly or through attorneys to agree on terms. For couples in particularly complicated or contentious divorce proceedings, it may take years to reach the conclusion.

If one spouse dies at any time during divorce proceedings, the divorce case immediately stops.   With only one spouse remaining alive, no union remains to be legally divorced.

Matters move to probate court

With the divorce case ended, all remaining issues related to the deceased spouse’s estate will be addressed in probate court, if necessary. The role of the probate court is to determine the allocation of a deceased person’s property according to their will and relevant legal statutes.

In general, details from a divorce case underway when a spouse dies have no bearing on the outcomes of the probate case. Probate courts operate independently under their own set of laws, and a probate court judge has no interest in a previously pending divorce case.

Even if the divorce case was nearly settled, that is totally irrelevant in probate court.

Assets allocated in probate court

In divorce cases, family court judges consider whether assets are deemed marital or nonmarital in order to divide them equitably. This distinction is immaterial in probate court. To divide the estate, the judge follows Illinois law

and the deceased person’s will, if one was in place.

If the person died “intestate” — meaning they did not have a will — probate court judges follow only Illinois law.^[1] In this case, they will award the entire estate of the deceased person to the surviving spouse, unless the deceased person has children.

Regardless of whether the deceased person’s surviving children are also the biological children of their surviving spouse, the children collectively will receive one half of the estate. The surviving spouse receives the other one-half.^[2]

Dying during divorce, with a will

When a person dies while having a will in place, called dying “testate,” their estate is still evaluated by a probate court judge. The judge will follow the deceased person’s wishes as laid out in their will, according to Illinois law.

Some people worry their soon-to-be ex-spouse might change their will during divorce proceedings in a bid to prevent them from collecting any portion of the estate in probate court, in case of their untimely death.

In this case, the surviving spouse has an opportunity to “renounce the will” in court, contesting it and asking the probate judge to reconsider the distribution of the estate. In noting the timing of the will’s changes, the judge may override the document and deem the spouse deserves some or all of the estate.

Even with a will in place upon death, a probate judge has the power to reallocate the estate as he or she deems appropriate under Illinois law. Surviving spouses carry a significant legal advantage in being awarded the estate of their deceased spouse, even if the couple were in the middle of divorce proceedings. 

CONCLUSION 

Other estate planning options such as trusts and direct beneficiary designations could be a concern and escape probate proceedings.  It is important to address your estate issues with your lawyer during and after your divorce.  Take the time to deal with these matters before it is too late. 

We’re Here to Help

Whether you are a current client or if you are looking for family law or estate planning assistance, our team is here for you to address your concerns.

To the extent possible, we will offer remote consultations and provide services from a distance.

You may message us here, complete the form below to email our office, or call 815-600-8950 and one of our team members will be able to assist you.