Beyond The Will, Client Compass

To wrap up our series on the impact of divorce on estate planning and probate litigation and to dovetail on Tiffany Bentley’s post discussing a former spouse’s death after divorce, this blog changes the timeline:  death during a divorce.  Divorce is complicated and emotional enough, but what happens when a spouse dies during the divorce process?  The answer depends on timing and advance preparation.

Beginning Stages of a Divorce

If a party dies during the beginning stages of a divorce, the divorce process ends.  The Probate and Family Court will not issue a divorce judgment when one of the parties has died.  In 1948, the Supreme Judicial Court stated that “[t]here can be no divorce unless both parties are alive at the time it is granted.”  As a result (and unless estate planning instruments instruct otherwise), the surviving spouse retains all the benefits of a widow.  Such benefits include receiving their intestate share of the estate, exempt property, and family allowance, which have been previously discussed in Beyond the Will.  In addition, the surviving spouse would also become the sole record title holder of any marital real estate held as tenants by the entirety, and they would receive any payable upon death accounts or retirement accounts.  The surviving spouse also would retain their priority to serve as Personal Representative of the deceased spouse’s estate, pursuant to M.G.L. c. 190B, section 3-203(a).

These spousal benefits substantially impact other relative’s inheritances and other rights.  For example, in a common situation involving blended families, children from the deceased spouse’s prior marriage would receive all of the intestate estate if there was no surviving spouse; alternatively, these children would receive only one-half of the balance of the intestate estate after the surviving spouse receives $100,000 off the top (and the surviving spouse would also receive the other one-half of the intestate estate balance).

When a spouse dies during a divorce proceeding, there is often a dispute over whom should serve as Personal Representative.  The surviving spouse would likely petition the Court for the appointment as Personal Representative, claiming statutory priority to serve.  On the other hand, the deceased spouse’s children and parents would argue that the surviving spouse is unsuitable to serve given the contentious nature of a divorce proceeding and intent to divorce, and that they are “next in line” with priority to serve as Personal Representative.

There are a few steps that spouses can take to protect themselves so that, in the unfortunate event of death during a divorce proceeding, their intent is carried out.  First, spouses should update their estate planning documents to contemplate death in the context of a divorce proceeding.  For instance, spouses can contractually agree in a postnuptial agreement what they want to happen in the event that one of them dies during a divorce proceeding.  While the Massachusetts Uniform Probate Code now revokes all revocable responsibilities (such as fiduciary nominations in a Will) upon a divorce, as discussed in Patricia Malley’s prior post, there is no reason not to include language in a Will nominating a trusted friend or relative as a Personal Representative in the event of a death during a divorce proceeding, before the divorce judgment enters.  Of course, such a Will should be validly executed to be enforceable – a person involved in divorce proceedings cannot execute a holographic Will as a suicide note!

Assuming that the divorce process has already started, any estate planning must comport with Supplemental Probate and Family Court Rule 411 that imposes an automatic restraining order from selling, transferring, disposing, etc. any assets during the divorce proceeding.  This automatic restraining order goes into effect against a plaintiff upon filing a divorce complaint and upon the defendant upon service of the divorce complaint.  It is critical not to run afoul of this automatic restraining order trying to protect assets from a divorcing spouse.

Second, if the divorce process has already started and the parties are concerned about advanced age or terminal illness, they could request a bifurcation of the divorce proceedings.  They would request that the Court adjudicate the divorce first, while preserving each spouse’s Section 34 claims regarding property division and alimony that would be determined in a subsequent (and more complex) proceeding.  This process would expedite the divorce itself and, for instance, remove the former spouse as a beneficiary under revocable documents and as fiduciary.

After Executing Separation Agreement

What would happen if the spouse dies later in the divorce process, particularly after the spouses executed a Separation Agreement?  The surviving spouse might not want to be bound by the Separation Agreement, believing they fare better as a widow than a divorcee.  Such a position could posit the surviving spouse against their own children or step-children. This situation occurred in Pavluvcik v. Sullivan, a 1986 case in which the Probate Court reported this “issue of first impression” to the Massachusetts Appeals Court.  In that case, the Massachusetts Appeals Court enforced the Separation Agreement after it reviewed its language and recognized the parties’ compliance with its provisions during the short time between execution and the wife’s death.

To avoid litigation regarding the validity of the Separation Agreement, it is prudent to include a provision in a Separation Agreement that contemplates death after its execution.  For instance, we often use the following language in Separation Agreements:  “In the event either or both of the parties dies before a Judgment of Divorce incorporating this Agreement is entered, but after this Agreement is duly executed by both parties, then this Agreement shall be fully enforceable as if said Agreement had been incorporated in said Judgment prior to either or both of the parties’ deaths.”

Life is unpredictable, and divorce is stressful.  To avoid unnecessary stress and to protect your intentions upon your death, we recommend discussing these complex issues carefully with skilled divorce and probate counsel.

Stay healthy!