What happens if your spouse dies in the middle of the divorce action? Do you get equitable distribution?

EQUITABLE DISTRIBUTION; INTERVIVOS GIFTS; PROBATE; FORCED SHARE; ELECTIVE SHARE 

If your spouse croaks in the midst of your divorce (and you had $43 million bucks on the line) do you still get it? The short answer to that question is no. If your spouse dies before the judge has adjudicated the marriage caput? The divorce “abates.” That means it stops, it is over. No equitable distribution for the surviving spouse. That is because equitable distribution is not an absolute right. There has to be a finding that is really ultimately made at the time the judge declares the divorce–so you may not have the signed final judgment, but maybe there was a hearing or trial and there are transcripts whereby you were “elocuted” on the record and the judge declared the marriage over.

But. If your spouse croaks before that happens, then the claim to equitable distribution dies with your spouse. Oh my god! Yes I know. What do you do in that case? Well, now you are looking at Trusts and Estates law to get your share of the estate (the “elective share” or the “forced share”), if your spouse died without a will or even if there is a will. If there is a will and you get less in the will than you would get by demanding your “forced/elective” share, then obviously, you are going to go for the forced or elective share and pooh pooh the will. Of course, you have to factor in any inter vivos/interspousal gift transfers (gifts made during the marriage) where there is a writing that it was meant to be an “advancement” of your share of the estate…

Normally, in New York, I believe the spouse can expect to take at least one third of the deceased spouse’s assets after a divorce–those assets that are subject to probate to be more specific–if there are other heirs such as children, and parents. If there are no other heirs and there was no will (spouse died intestate) then the surviving spouse may be looking at a windfall if the deceased spouse was loaded and there was no will.

Can a spouse totally disinherit their spouse in their will? I don’t think so. You would have to consult with an Estate lawyer cause this stuff is really complex and it is not my area. But generally, the rule is that a spouse cannot “disinherit” a surviving spouse. That spouse can always take a “forced share” of the estate (anything that goes to probate) and that may, in some instances, be more than what the spouse would get as “equitable distribution.”

Of course, it matters if you live in a community property state or in a common law state (separate property). Surviving spouses in community property states tend to do better if the spouse croaks intestate (without a will). They usually get at least 50%.

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