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Getting divorced or going through a family law proceeding for custody, access, or child support, for example, can be a stressful process at the best of times. What happens if one of the parties dies unexpectedly or is incapacitated and can no longer meaningfully participate in the proceedings?

In the event a party to the proceeding dies during the action, the case is abated, meaning it terminates. The Court loses jurisdiction and can take no further action in the case. The proceedings will be discontinued, often without the involvement of the Court.

In a divorce, the surviving spouse would inherit the deceased spouse’s assets as directed in any estate planning documents, such as a Will or Trust, or through making a spousal right of election against the estate. This right of election permits the surviving spouse to receive a one-third share of the assets of other spouse’s estate, even if the surviving spouse has been disinherited.

There are loopholes to the spousal right of election, however, including the existence of a pre- or post-nuptial agreement where the right of election was knowingly waived, or if the surviving spouse is found to have abandoned the deceased spouse.

One caveat, however, is if there is a fully executed Separation Agreement or a decision after trial and the only remaining action is for the Judge to sign the Judgment of Divorce, so the divorce will be finalized. The surviving spouse will lose their right of election and the right to inherit through a Will or Trust that pre-dates the divorce. Those estate planning documents will remain valid, but any provision for the former spouse will be void. We recommend speaking with our estate planning attorneys following a divorce to prepare or update your Will or Trust.

The situation where a party to the proceeding becomes incapacitated is unfortunately much more complicated and time consuming.

Where the incapacitated party can no longer adequately understand and participate in the proceedings, an application should be made for the appointment of a guardian to represent them. A family member or close friend is often appointed as the guardian, but the Court can also appoint a neutral attorney if there is no one else capable of serving as guardian.

The guardian is tasked with making decisions on behalf of the incapacitated party during the proceedings. An attorney should still represent the guardian, even if it is an attorney that was appointed. In the event of a mental incapacity due to illness, the appointment of a guardian can often result in the proceeding moving forward more efficiently, but there is often a detrimental impact on the case where relevant information is known only to the incapacitated party.

A physical incapacity by itself is usually not sufficient to warrant the appointment of a guardian, and with the wide-spread adoption of virtual appearances as a result of the Covid-19 pandemic, access to the Court system for those with physical disadvantages may actually improve.

If you or a loved one has questions about these topics or on divorce and family law in general, call the law firm of Jacobowitz & Gubits, LLP. today.

This is not intended to be legal advice.  You should contact an attorney for your specific situation.


Martin S. Butcher, Esq.

Martin S. Butcher, Senior CounselMartin Butcher is senior counsel with the firm and practices Family and Matrimonial Law, and Bankruptcy Law.  He can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.[/column]

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