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 before your or your spouse's death.
When we think of family law in Texas, we usually talk about the Texas Family Code as the "book" of laws that govern matters related to marriage, children, and the family unit. On the other hand, the Texas Probate Code outlines the statutes governing a person's property after 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 reasonably 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, PLLC, will examine some of these issues and do our best to outline a potential course of action to avoid problems for you and your family in the future. These blog posts will include tips on handling the divorce itself, drafting your final decree of divorce, and other helpful hints.
What happens if a death occurs before your divorce is finalized?
If you or your spouse have filed for divorce and your spouse passes away, your divorce will cease. The case will be dismissed by the court in which it is filed. Your attorney may request a death certificate 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 then go to a probate court, which will ultimately determine any issues of dividing up your spouse's property. If 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 filing for divorce from your now-deceased spouse.
Updating your will as soon as your divorce is filed
Suppose you have recently filed for divorce or have had a divorce filed against you. In that case, you should immediately schedule an appointment with your estate planning representative to have your will updated. If 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 apparent- 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 a 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 your divorce has issued temporary orders and then your spouse passes away?
The initial stage of a divorce case is what I call "Temporary Orders" temporary orders set 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 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 your spouse's passing. It is not the case that the court has any jurisdiction over your children at this stage, but instead that it can continue to act and issue orders that relate to the best interests of your children. If your case has been completed and your ex-spouse has passed away, the same can be said. Until your children reach the age of majority, the orders rendered by the court will still apply.
Custody and conservatorship determinations are rendered moot if your spouse were to pass away before your divorce is 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
Suppose you and your spouse have recently negotiated a mediated settlement agreement (MSA) to conclude your divorce. Still, your spouse passes away before that MSA can be used to draft and enter a final decree of divorce. In that case, the MSA becomes a binding document and can act essentially 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 to try and reduce those obligations to a lump sum money judgment. Second, you can file a lawsuit as a breach of contract 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 the 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 outlined in your Final Decree of Divorce. You have until two years after your right to specific 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 before this date, 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 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 not to 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 not to write about.
If you have questions about anything you've read today or need clarification on any subject, please contact the Law Office of Bryan Fagan, PLLC, today. A consultation with one of our licensed family law attorneys is free. 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 of the families of southeast Texas and would be honored to do the same for you and your family.