As frustrating as a divorce can be, very few people actually wish for their ex to expire while the divorce is ongoing. Occasionally, however, accidents or illnesses mean that one spouse dies while a former couple is moving through the legal procedures for dissolving their marriage. When either spouse dies during divorce, the remaining party may have a number of questions regarding the status of their former partner’s estate and how they themselves need to proceed in order to claim their portion of any marital property that has not already been divided by a final order from the Virginia court overseeing the divorce case. A Fairfax family law attorney with DiPietro Law Group may be able to help you evaluate your situation and navigate the steps you need to take to secure your independence and financial freedom. Call our office at (866) 607-3461 today to schedule a consultation.
Estate Planning Terms You May Need To Know
“Descent” and “intestate succession” are not terms you are likely to encounter in most divorce cases, but if your spouse dies during your divorce, you may find yourself dealing with them frequently. Descent, in this context, refers not to the deceased individual’s ancestry, but to the way his or her property is passed on, specifically through the intestate succession. Intestate succession, meanwhile, is the legal process by which the property of an individual who dies without leaving behind a valid Will (also known as dying intestate) is transferred to heirs. When a decedent (an individual who has died) does leave a valid Will, then instead of “descent,” property is usually said to be transferred by bequest or devise, and the property is left to beneficiaries, rather than distributed to heirs.
Assess the Legal Situation: When One Spouse Dies Before the Divorce Is Final
Having one party die while a court case of any type is pending can complicate matters for surviving individuals connected with the case. The death of one spouse during a divorce, however, can be especially bewildering for the party remaining. In addition, in Virginia there are some specific factors related to the state’s inheritance laws, and its legal procedures for handling separation and divorce, that can make it especially confusing for a surviving would-be ex to identify and navigate the next steps when a spouse dies before the divorce can be finalized through the Virginia courts.
When Probate Meets Family Law
While fortunately unusual, cases in which one spouse dies while their divorce is ongoing can be legally complicated because they necessarily involve two areas of law that are generally separate: family law and probate. Depending on whether your estranged spouse had any estate planning measures in place, and what those were, the probate end of the process may involve an entirely new set of legal concerns and interactions with one or more probate lawyers with whom you may or may not be familiar from the time of your marriage.
Consider Working With an Attorney
There are several approaches to navigating the resulting complexities, and it is usually not possible to outline an optimal approach in detail without knowing the details of a particular situation. In general, however, at DiPietro Law Group we typically like to begin by treating the death of a spouse during divorce in much the same way that we would handle any other unexpected complication during the divorce process. If a deceased party’s estate is represented by a probate lawyer, we would typically reach out to our colleague in that practice area to establish an understanding regarding the status of the decedent’s estate and any known challenges that exist on that end of the process. While divorces can easily become contentious, resolving the estate issues that arise when one spouse dies during divorce proceedings can often be a collaborative process of problem-solving.
Review Essential Rules for Virginia Probate
Virginia law is somewhat unusual in that it specifies its rules for the transfer of real estate vs. personal property, both in the event of intestate succession, separately – even though the two types of property are ultimately handled according to the same rules. V.A. § 64.2-201), which governs the “descent” of personal property in intestate succession, merely specifies that any surplus of the estate remaining after all debts and funeral expenses have been discharged that is “not effectively” directed to beneficiaries by a Last Will and Testament (normally this would mean intestate succession) must be passed on to heirs according to the rules spelled out under V.A. § 64.2-200, which covers the descent of real estate.
Identify Heirs of the Estate
Many people going through a divorce are young enough that they may have given little thought to estate planning, so one of the first questions you may need to answer is whether your estranged spouse left a valid Will. For married persons who die intestate, Virginia law provides for the surviving spouse to receive a share of the decedent’s estate, as follows:
- If the decedent had no children (also known as dying “without issue”), or if all of the decedent’s children are also children of the surviving spouse, then the surviving spouse inherits the entire estate, minus the portion necessary to cover the decedent’s funeral expenses and pay his or her debts.
- If the decedent had children who are not also the children of his or her surviving spouse, then the surviving spouse is entitled to one-third of the entire estate, and the remaining two-thirds will be divided among the decedent’s children. If any of the decedent’s children have preceded him or her in death, then their share will descend (pass down) to their own heirs.
Children who are adopted by the surviving spouse during the decedent’s lifetime are generally considered to be the children of both parties, irrespective of divorce; stepchildren typically are not, as they remain the children of their other (hopefully surviving) parent.
Recognize What Is the “Elective Share” of the Surviving Spouse and How It Works
Many states, including Virginia, have laws providing for a surviving spouse to claim an “elective share” of a deceased partner’s estate, irrespective of whether the deceased spouse left their partner any bequest or devise in a valid Will. In the instance of a Will, however, the elective share may be less than the total a spouse might have received by “descent” through the process of intestate succession, depending on whether all of the decedent’s children were shared by the surviving spouse.
While many spouses name each other as the sole beneficiaries of their respective estates, or designate each other to receive the lion’s share of their assets, Virginia § 64.302 establishes that for the estates of individuals who die from 2017 forward, a surviving spouse is entitled to claim one-third of the decedent’s estate, regardless of any terms set out in the individual’s Will. This provision ensures that the portion of the estate a widowed spouse receives from their partner’s Will will never be less than the minimum they might have inherited under Virginia’s rules of intestate succession.
Impact of Divorce Proceedings on the Elective Share of the Surviving Spouse
The way Virginia’s laws regarding the elective share of the surviving spouse are structured means that you may be entitled to one-third of your estranged partner’s estate if your spouse dies during divorce. Even if the individual has already taken steps to remove you from their Will, the provisions of V.A. § 63.2-302 will likely ensure that a minimum portion of their estate passes to you. You may, however, wish to make a close investigation of how your ex’s debts are to be handled – particularly since divorce proceedings are a common cause of financial complications.
Estate Plans and Divorce: Legal Separation vs. Divorce in Probate
Like most other states, Virginia has laws ensuring that a divorce will nullify most elements of an estate plan that relate to an individual’s former spouse. The same provisions also remove divorced spouses from one another’s “descent” in the event of intestate succession. Generally speaking, however, these legal changes are triggered by the final order from the court, granting the divorce, rather than by the divorce complaint that initiates the proceedings.
What Does “During Divorce” Mean?
Virginia’s laws regarding legal separation can sometimes complicate the picture for what “during divorce” means in a given situation. Because no-fault divorce in Virginia requires a legal separation of six months to one year prior to filing, estranged couples who have separated to initiate this process may sometimes refer to themselves as “going through a divorce,” even though they are not eligible to legally file the documents that will open a divorce case until the mandatory separation period has concluded. Moreover, a contested divorce can sometimes take months to years before final orders are issued, and when a divorce is appealed spouses are prone to referring to their divorce case as “ongoing,” even though in this instance the final order granting the divorce has been issued.
Effect of Legal Separation on Property and Debts
In most circumstances, whether “during divorce” is a technically accurate description of anyone’s current legal status is a matter of interest primarily to court clerks, case managers, and family law attorneys. However, when one spouse dies after the partners have become estranged, but before the final divorce order has been issued by the court, it may become important to determine the exact legal status of the couple’s separation. Even if legal separation does not preclude you from receiving the elective share of your ex’s estate, the terms of any separation agreement the two of you signed may affect your liability for debts that would have been considered shared prior to the separation. Similarly, the calculation of your estranged spouse’s estate during probate may be affected by the terms of any agreement regarding the division of marital property that had been formally concluded as part of your divorce proceedings.
Speak With a Virginia Family Law Attorney
Knowing what steps to take if your spouse dies during divorce can be challenging – and frustrating, since an unexpected death during divorce proceedings can introduce a number of complications that many estranged partners understandably feel should not be their responsibility. The good news is that you may be eligible to claim a portion of your ex’s estate; how that portion may compare to whatever financial settlements you may have been negotiating as part of your divorce will depend on the circumstances. Given the complexity of the legal requirements that can arise when family law overlaps with the probate of an estranged spouse’s estate, many individuals who find themselves in this situation prefer to navigate their next steps with the help of an experienced Virginia attorney. Call DiPietro Law Group to schedule a consultation so that we can go over the details of your situation and offer tailored guidance. You can reach our Fairfax office at (866) 607-3461.
