Your marriage was not working and you decided it was time to end it. You and your spouse agreed to file for divorce, split your assets, and go your separate ways. Then everything changed when your spouse died while you were still divorcing. Aside from the shock and mourning you may feel because even though you were divorcing, your spouse was still someone who had been a huge part of your life for a long time, you are also likely trying to understand what happens next. Do you continue with the divorce? Do you inherit their estate as if you were still happily married? What happens if your spouse dies during divorce? At King Law Offices, our North Carolina and South Carolina divorce attorneys are prepared to review your case. We may be able to offer guidance regarding your next steps, inheritance rights, and what to do to avoid these questions in the first place. Call (888) 748-KING to schedule a consultation in one of our offices and learn more about the legal intersection of divorce and death and its impact on you.
What Are the Legal Methods to End a Marriage?
There is one way that people get legally married: a marriage license provided by a county or state government. Without this marriage license being granted by the government, completed by the officiant, and then filed by the same government that granted it, a marriage is not legal. While getting married is relatively straightforward, ending a marriage is not quite as straightforward. There are four ways to end a marriage: annulment, legal separation, divorce, or the death of one of the spouses.
Getting an Annulment
An annulment voids a marriage by making it as though it never happened. Annulments are granted by the court, although there are also religious annulments. Religious annulments are not the same as legal ones granted through the court, so if a couple is part of a religion that offers annulments, they may need to get both a legal and a religious one. Legal annulments are often only granted in limited circumstances, such as fraud or bigamy. Many times, the marriage must also be recent.
Legal Separation
A legal separation is a court-ordered arrangement allowing the spouses to live apart while still married. Therefore, it does not technically end the marriage. However, it does grant certain rights or privileges that would come with a divorce, such as the right to live apart and any newly acquired assets being separate. Legal separations also address matters like financial responsibilities, asset division, and child custody and support.
Filing for Divorce
A divorce, also known as a dissolution of marriage, is a legal proceeding that terminates a marriage. There are different kinds of divorce, such as contested and uncontested, collaborative, or a summary dissolution. A divorce does not make the marriage void, but it ends the marriage as of the date that the court signs the order and files it with the clerk of court. A divorce will also address issues like asset division, child custody and support, financial responsibilities, and any other matters the divorcing couple needs the court to address.
Death of One Spouse
The fourth way a marriage can end is when one of the spouses dies. When a spouse dies, the surviving spouse becomes a widow (for women) or a widower (for men). The widow or widower will inherit their deceased spouse’s estate according to the estate plan in place. If there is no estate plan, the surviving spouse will inherit based on either South Carolina or North Carolina state law. If a divorce is in process when the spouse dies, the divorce is stopped by the death.
What Happens When One Spouse Dies During a Divorce?
Bowling Green State University reports that between 1990 and 2008, the “gray divorce” rate more than doubled, and in 2017, there were 344,375 women aged 50 and older who were divorced. Gray divorces, or divorces for couples aged 50 or older, may happen for a variety of reasons, but the age of the spouses increases the possibility that one spouse dies during divorce. Even in younger couples, there is always a possibility that one spouse may die while the divorce is going on. However, what does happen when one of the spouses dies mid-divorce? The answer to that question largely depends on where in the divorce process the couple is when the death occurs. Other factors that influence what will happen are the estate plan (or lack of one) in place when the death occurs, and what state the divorce is in.
In both states, the surviving spouse should immediately notify the state of their spouse’s death. In North Carolina, the state will likely dismiss the divorce upon such notification. In South Carolina, the surviving spouse may need to request that the divorce be dismissed. In either state, the death abates the divorce proceedings and the surviving spouse is considered a widow or widower.
North Carolina
In North Carolina, being separated with the intent to get divorced does not eliminate any marital estate rights. Both spouses retain those rights as if they are still happily married unless one of them engages in an act that is outlined in N.C. Gen. Stat. § 31A-1. These acts include:
- Having a court-entered divorce from bed and board
- Voluntarily separating from the spouse and living in adultery
- Willfully and without just cause abandoning and refusing to live with the spouse, and not living with the spouse at the time of the death
- Obtaining a divorce that is not recognized as valid in the state of North Carolina
- Knowingly contracting in a bigamous marriage
This means that if the spouse dies during the divorce but before it is made final with a signed, filed decree, the couple is considered still married and the surviving spouse inherits as if the divorce was not occurring. If the divorce has been made final, including the equitable distribution of assets, the divorce decree provides for what happens. The assets distributed to the deceased spouse are distributed to their estate, which then distributes them according to the estate plan.
South Carolina
S.C. Code 62-2-802(c) provides that an annulment or divorce is not final until the court has signed it and filed it in the clerk of court’s office. This means that even if the couple has had their final hearing and the judge has said they are divorced, if one spouse dies before the judge signs the final decree and files it with the clerk of court’s office, they are still legally married. Therefore, the surviving spouse would become a widow or widower and can inherit from the deceased spouse’s estate as per the estate plan or, if there is no estate plan, according to state law. If the deceased spouse did not leave anything to the surviving spouse, the surviving spouse has the right to claim a spousal elective share equal to one-third of the estate, per S.C. Code 62-2-201. However, spouses can waive their right to a spousal elective share. This is often done in a prenuptial or postnuptial agreement.
If the spouse dies during divorce but after the judge has signed the final decree and filed it with the clerk of court’s office, the South Carolina divorce decree applies. The couple is legally divorced at that point, and the asset distribution agreed to by the couple or ordered by the court applies. The deceased spouse’s share of the assets is distributed to their estate, which then distributes those assets according to the terms of the estate plan.
Can You Change Your Estate Plan During Divorce in North Carolina or South Carolina?
In some states, estate plans and other legal documents cannot be changed during the divorce process. Both North Carolina and South Carolina allow individuals to make changes to their estate plans during divorce. However, it is essential to know that some aspects of the estate plan may not be able to be changed and other changes are not recommended.
In both states, individuals can update documents such as their powers of attorney and living will to ensure that their soon-to-be former spouse does not have continued authority over their finances or healthcare during or after the divorce. If an individual does not already have these documents in place, they may wish to create them so that their spouse is not put in a decision-making position during the divorce if something happens.
South Carolina
In South Carolina, like most states, irrevocable trusts are typically considered to be unchangeable. However, per S.C. Code 62-7-411, an irrevocable trust may be terminated or modified if all the beneficiaries and the grantors agree or if they do not agree, the court may grant approval. South Carolina law generally does not prevent individuals from changing beneficiary designations, such as those on life insurance or retirement accounts, during divorce.
Once a divorce decree has been filed, spouses are considered to have pre-deceased each other for purposes of their wills. However, if spouses do not want their soon-to-be former spouse inheriting in the event one spouse dies during divorce before the decree is filed, they will want to update their will. However, completely disinheriting the spouse is not recommended. Individuals may wish to consult with an experienced divorce attorney at King Law Offices to learn more about how to make these changes.
North Carolina
North Carolina allows individuals to change most of their estate planning documents without their spouse’s permission. However, some trusts may not be able to be changed. Additionally, North Carolina does not allow a spouse to completely disinherit their spouse unless they have formal consent on a separation agreement, a prenuptial or postnuptial agreement that indicates such disinheritance, or the divorce has been finalized.
N.C. Gen. Stat. §31-5.4 provides that if a will is not changed during or after divorce, spouses are considered to have predeceased each other. However, beneficiary designations do not change unless the individual changes them. Some of these designations, such as those on retirement accounts, may not be able to be changed during divorce without the spouse’s consent. Individuals may want to consult with an attorney to determine when and how they can change those designations.
Proactive Steps to Avoid Spouse Inheriting If Death Occurs During Divorce
Depending on when a spouse dies in the divorce process, they may still be able to inherit during divorce. However, there are some proactive steps that individuals can take that can prevent their spouse from inheriting. Some of these steps require planning, as they must be taken before marriage or before considering divorce to be valid, while others are options even during the divorce.
Prenuptial or Postnuptial Agreements
If one or both potential spouses has significant wealth or has been married in the past, a prenuptial agreement or prenup may be an option they consider for many reasons before marriage. In this document, one or both spouses can indicate that they waive their inheritance rights during divorce. They can also agree to waive their inheritance rights, such as the spousal elective share, even if they are not divorcing. This is often done when couples are entering a second or subsequent marriage and one or both spouses wants to leave their estate to children from previous marriages.
For couples who may not have thought to create a prenup or who did not feel they had a reason to before marriage, but their mind or circumstances change after marriage, a postnuptial agreement or postnup has the same effect as a prenup. The main difference is that a postnup is signed after marriage. The document would still allow the spouses to waive their rights to inherit, whether it is during divorce or not.
Separation Agreements
If a couple has separated with the intention of divorcing but is not yet eligible to file, or if they know the divorce may take some time, a separation agreement may allow them to waive any inheritance rights. They can also use this agreement to distribute the marital assets, if they can agree. If they cannot agree on property division, they may still be able to enter a partial separation agreement, which allows them to waive their estate rights while they continue to negotiate the divorce.
North Carolina does not require court involvement or approval for this separation agreement, so it can be a private agreement between the couple unless one spouse dies and it is then presented to the court. However, South Carolina does require court approval for the agreement, called an Order of Separate Maintenance and Support, to be legally binding.
Divorce From Bed and Board
A divorce from bed and board is a type of legal separation offered in both South Carolina and North Carolina. This legal separation requires court involvement and allows the couple to live apart but remain married. The separating couple can address issues such as child custody and support, spousal support, property division, and waiving their estate rights. While it is often used by couples who have religious reasons for not fully divorcing or couples who think they may wish to reconcile at a later time, it can be a valuable way to prevent a spouse from inheriting if one spouse dies during divorce.
How a Divorce Attorney May Be Able To Assist You
Once you have decided to divorce, you begin making plans for that future. When your spouse dies during divorce, it can change everything. Suddenly, everything may be in limbo as you try to determine what to do next. At King Law Offices, one of our experienced divorce attorneys may be able to assist you with notifying the court of the death, determining how the divorce and probate laws apply to your circumstances, and communicating with other relatives who may disagree with how those laws apply. Call (888) 748-KING to schedule an appointment in one of our North Carolina or South Carolina offices and discuss your case.