Different circumstances can arise if either you or your spouse were to
pass away after your
divorce has been finalized but the terms of that
divorce decree: payments yet to be made to creditors, unpaid child support payments,
unpaid spousal support payments or any other obligations that were not
yet taken care of prior to your or your spouse’s
When we think of
family law in Texas we are usually talking about the Texas Family Code as the “book”
of laws that governs matters related to marriage, children and the family
unit as a whole. On the other hand, the Texas Probate Code outlines the
statutes that govern a person’s property after their death. In this
area, divorce and death, these two sets of laws collide and we are left
to sort out how one affects the other and vice versa.
We see this especially when, for example, your spouse passes away and there
are consequences that neither you nor your ex-spouse could have reasonable
foreseen or expected at the time you were negotiating the terms of your
Final Decree of Divorce.
In this and the blog posts to follow, the attorneys with the
Law Office of Bryan Fagan will examine some of these issues and will do our best to outline a potential
course of action to avoid problems for you and your family in the future.
Tips on handling the divorce itself, drafting your final decree of divorce
and other helpful hints will be included in these blog posts.
What happens if a death occurs prior to your divorce being finalized?
If you or your spouse have filed for divorce and your spouse passes away
your divorce will cease to be. The case will be dismissed by the court
in which it is filed. Your attorney may request a death certificate in
order to provide to the court but even this may not be necessary. If you
take no action on your case, and your spouse’s former attorney does
the same, the case will be dismissed for want of persecution.
Once the divorce itself fades into the black, any property issues that
need to be sorted out with then go to a probate court which will ultimately
determine any issues of dividing up your spouse’s
property. In the event that your spouse does not have a will, you would be able
to inherit property from your spouse as any other spouse would (as if
your divorce were never filed at all). There is no “penalty”
for having filed for divorce from your now deceased spouse.
Updating your will as soon as your divorce is filed
If you have recently filed for divorce, or have had a divorce filed against
you, you should immediately schedule an appointment with your estate planning
representative to have your will updated. In the event that you do not
have an estate planning attorney you should ask your family law attorney
for a recommendation. Our office updates and drafts wills for clients,
if you are interested in speaking to one of our attorneys about this service.
The reason for doing so should be pretty obvious- the last thing you want
is to pass away and leave all your personal belongings and any other property/money
to a person that is mere months from being of no relation to you. If you
have relatives, children, friends, non-profit organizations or place of
worship that would be better off receiving your property upon your passing
I would recommend this be done as soon as you are able.
What happens if temporary orders have been issued in your divorce and then
your spouse passes away?
The initial stage of a divorce case is what I call “Temporary Orders”
temporary orders sets forth the initial set of orders that you and your
spouse will need to live by until final orders can be negotiated and signed
into being by you, your spouse and the judge. These orders govern your
household expenses, bills, and issues related to your children.
Temporary Orders related to your children are not affected by your divorce case being dismissed
due to the passing of your spouse. It is not the case that the court has
any jurisdiction over your children at this stage, but rather that it
has the ability to continue to act and issue orders that relate to the
best interests of your children. The same can be said if your case has
completed and your ex-spouse has passed away. Until your children reach
the age of majority the orders rendered by the court will still apply.
conservatorship determinations are rendered moot if your spouse were to pass away prior
to your divorce being finalized. You naturally become the managing conservator
of your children at that point no matter what role you played after the
divorce. The divorce decree’s orders regarding possession/visitation
of the children would hold no meaning any longer and you would be entitled
to 100% possession of the children.
Mediated Settlement Agreements
If you and your spouse have recently negotiated a mediated settlement agreement (MSA) to conclude your divorce but your spouse passes away before that MSA
can be used to draft and enter a final decree of divorce the MSA becomes
a binding document and can act essentially in the same way as a final
decree of divorce.
Death after the Final Decree is entered
If you and your spouse have had a Final Decree of Divorce entered (all
parties and the judge have signed) and you find yourself in a position
where there are unmet obligations by your ex-spouse in that final decree
but your ex-spouse has passed away you have two options to choose from.
First, you can attempt to enforce those obligations contained within the
Final Decree of Divorce in order to try and reduce those obligations to
a lump sum money judgment. Second, you can file a lawsuit as a breach
of contract in order to seek damages against the estate or your ex-spouse.
Under either option one or option two, your ex-spouse’s estate would
defend the lawsuit and if the estate has a personal representative would
be the named defendant in that lawsuit.
Dividing up property after a divorce when a spouse has died
Your family law court that issued and entered your Final Decree of Divorce
will continue to have jurisdiction and can continue to issue orders related
to the property division as set forth in your Final Decree of Divorce.
You have until two years after your right to certain property comes into
being or the date on which your decree became final- whatever date occurs
later. If you do not file your enforcement suit prior to this date then
you will not be able to do so moving forward.
This is all to say that a family law court cannot change the division of
property contained in your Final Decree of Divorce. Any order that you
win from an enforcement suit can only clarify or seek to implement the
agreements or orders contained within the Final Decree of Divorce. Any
additional orders can only be used as a tool to enforce whatever is contained
in your Final Decree of Divorce as far as a division of property is concerned.
A court can order that specific property be delivered to you, enforce
specific provisions and clarify provisions or orders that to that point
may be considered unclear.
Child Support after the death of an ex-spouse-tomorrow’s blog topic
We hope that today’s blog post has taught you something about family
law that to this point you may have never considered before. It is understandable
to not want to discuss death or any subject related to death. However,
situations we have discussed today have arisen in the lives of clients
of our office this past year and we felt the subject matter was too important
to not write about.
If you have questions about anything you’ve read today or would like
clarification on any subject please
Law Office of Bryan Fagan today. A consultation with one of our licensed family law attorneys is
free of charge. We can walk you through any question you may have in the
area of family law in a comfortable, pressure free environment. We work
on behalf on the families of southeast Texas and would be honored to do
the same for you and your family.