What Happens When a Party Dies before a Divorce Case is Over?

Divorce can be a lengthy process that can take months or even years to finalize. Unfortunately, some people have to deal with the harsh reality of having their spouse die during the pendency of the divorce proceedings, but before their divorce is finalized. This can create complications, and many clients often wonder if they can proceed with their case.

Generally speaking, in Illinois, when your spouse dies during your divorce, so does your divorce case. The divorce case can no longer proceed, and the Court is required to dismiss the case. The Domestic Relations Division will typically lose jurisdiction, and the case will be transferred directly to the Probate Division.

Probate court is a court that oversees the process of distributing a deceased person’s estate and ensuring their debts are paid. They will ensure that the legal transfer of property and financial responsibilities after someone passes away.

This being said, once your spouse dies, the fight for any money, estates, allocation of children, etc., is now over since they have deceased. Since you are not yet divorced, you will still retain your marital rights. However, any will or prenuptial agreement will be valid. If a will does not give a spouse any distribution though, you may have options to contest this, and we suggest consulting with a probate lawyer (we have great referrals).

If a Judgment for Dissolution of Marriage is entered before your now former spouse dies, then that Judgment controls.

750 ILCS 5/401(b) states, “The death of a party subsequent to entry of a judgment for dissolution but before judgment on reserved issues shall not abate the proceedings.”

Case law has further stated that “generally, the death of a party during the course of divorce proceedings has been held to abate the action. This Court has recognized, however, that there is no abatement upon the prejudgment death of a party to a nonsurviving action if the litigation is ripe for judgment.”  In re Marriage of Davies, 95 Ill. 2d 474, 448 N.E.2d 882 (1983).

The Law Office of Erin M. Wilson LLC is experienced in representing clients through various aspects of divorce. We are available to consult with you on your options if the harsh reality of a spousal death during divorce occurs. Contact The Law Office of Erin M. Wilson LLC to schedule a consultation.

NOTICE: This blog is intended solely for informational purposes and should not be construed as providing legal advice. Please feel free to contact us with any questions you may have regarding this blog post.