What Happens If One Spouse Dies Before Divorce Is Final in Texas?

In Texas, it takes at least three months and up to a year or more to finalize a divorce. A lot can happen in this time—including, sadly, the death of one of the spouses. This unfortunate turn of events could leave the surviving spouse unsure of their marital status. Had the divorce been finalized, they would have already moved on with their life. However, with the divorce still pending, they may be a widow or widower. This raises the question: “What happens if one spouse dies before divorce is final in Texas?”

Understanding Death During Divorce Proceedings in Texas

When a spouse dies during a divorce case in Texas, the proceedings typically stop, and the court will dismiss the case. Because the marriage remained in effect until the moment of the decedent’s death, the surviving spouse becomes a widow or widower. Furthermore, the deceased spouse’s estate will go through the probate process. Consequently, a surviving spouse’s rights will involve a combination of Texas family and estate laws. 

Property Division and Asset Distribution After Spousal Death

As a community property state, Texas treats all property acquired by a married couple during their marriage as owned equally by both spouses. When a spouse dies during a divorce case, their interest in the community property will pass according to Texas probate law, regardless of any prenuptial agreement or proposed divorce settlement agreement. If the spouse died with a will, their property, including their spousal share of the community property, will pass according to the will’s terms. However, if the spouse died without a will, then their share of the community property will pass according to Texas’s intestate succession laws. 

Texas law states that when an individual dies with a surviving spouse and surviving descendants, and the deceased individual shares no surviving descendants with their surviving spouse, the surviving spouse inherits the deceased individual’s one-half share of the community property. However, if the decedent had children from another relationship, the surviving spouse keeps their half of the community property, and the decedent’s half passes to their children. 

Child Custody and Support Modifications

When a spouse dies during a divorce proceeding, any temporary child custody arrangements that the couple had will terminate, and the surviving spouse will assume sole legal and physical custody of the couple’s children. However, the deceased spouse’s parents can petition the court for visitation rights to the couple’s children if the surviving spouse denies access. A grandparent’s petition for access will require them to overcome the presumption that the surviving spouse has acted in the child’s best interest by showing, by a preponderance of the evidence, that denying the grandparents access to the child would significantly impair their physical health or emotional well-being. 

A surviving spouse may have the right to enforce the deceased spouse’s child support obligations against their estate. The deceased spouse’s estate must pay any child support arrears, which constitute a debt owed to the decedent’s child. The court may also determine a lump-sum payment that the decedent’s estate must pay to the child for future support.

Spousal Support and Maintenance Issues

In the event the couple had a temporary spousal maintenance order in place during their divorce, the surviving spouse may have the right to pursue a claim against the deceased spouse’s estate for unpaid support. However, the decedent’s death typically terminates future support obligations, unless a court order expressly states that the spouse’s support obligation will continue after their death. In that case, the decedent’s estate will become responsible for continuing support payments. 

Courts sometimes order spouses with spousal maintenance obligations to obtain a life insurance policy naming the other spouse as a beneficiary to provide financial security for the obligation. In those circumstances, the surviving spouse may have the right to recover death benefits under the deceased spouse’s policy. 

When to Hire an Estate Attorney vs. a Divorce Attorney

If your spouse has passed away before your divorce was finalized, you may need to seek additional legal help from an attorney who has experience with estate administration and probate, since your spouse’s death will result in the dismissal of your divorce case. An estate administration attorney can advise you on issues relating to your spouse’s probate case, including your right to inherit their share of your community property. 

However, your divorce attorney can continue to help with legal issues related to your divorce, such as collecting unpaid spouse maintenance payments, pursuing a claim for child support arrears, or seeking a court order to determine your spouse’s future child support obligation that you and your child can recover from your spouse’s estate. 

Contested Wills and Family Disputes

Someone who dies rather suddenly while their divorce is still pending may not have had time to update their estate planning documents to reflect the end of their marriage. As a result, their will, trusts, or beneficiary designations may still name their spouse as a beneficiary of their estate. Although Texas law states that divorce automatically revokes any references in a will to a testator’s ex-spouse, the fact that the divorce had not been finalized may mean that a surviving spouse’s inclusion in the other spouse’s will remains valid.

This situation can lead to disputes, because while the law says a surviving spouse has the right to inherit from their deceased spouse, even when a divorce was pending, the deceased spouse’s family may believe that their loved one had intended to change their estate plan. A disagreement of this sort may result in will contests or other litigation to challenge any inheritance the surviving spouse might receive. 

Contact Balekian Hayes, PLLC, for your Family Law Matters

A spouse’s death during a divorce case can introduce legal complications for the surviving spouse, raising questions like, “Are you still legally married if your spouse dies during divorce?” Experienced legal counsel can help you address the challenges you might face under these circumstances and protect your future. Contact Balekian Hayes, PLLC, today for a confidential consultation with a Texas divorce attorney to get the answers you need during this difficult time.