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What Happens if My Spouse Dies While We’re in the Middle of a Divorce?

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It is unfortunate, but sometimes a spouse dies during a divorce action. When that occurs, the divorce stops. Instead of being divorced, the spouse becomes a surviving spouse.

When your lawyer notifies the court of your spouse’s death, the court dismisses the divorce proceedings. It does not issue a final order regarding any issues related to the divorce. Child support and alimony payments cease. 

Therefore, issues to discuss with your divorce lawyer include the following:

Custody of Your Children 

As the only surviving parent, you should assume sole custody of your children. However, another party could petition the court for custody on the grounds that you are unfit. If so, that is a separate legal action that the court would decide based on the best interest of the children.

Marital Debts 

You are legally responsible for any co-signed or joint debt. If you fail to make the payments, the creditor can sue you for the entire balance owed.


Your spouse’s assets are now subject to the probate estate. The assets are disbursed according to the terms of your spouse’s Last Will and Testament. If your spouse did not have a Will, the estate is subject to Florida‘s intestate succession.

However, you might be entitled to a portion of your spouse’s estate under Florida’s elective share statute. Therefore, even if your spouse changed their Will to remove you, the elective share might give you a portion of your spouse’s estate.

When a spouse dies during a divorce action, you need legal advice regarding several issues. A divorce lawyer helps you take care of any issues that arise in family court. A probate attorney can represent you regarding your spouse’s estate, including the inheritance received by your children. 

However, you might also want to consult a car accident lawyer or a similar type of personal injury lawyer if applicable. If your spouse died because of negligence, intentional torts, or other acts, you might be entitled to compensation for damages under Florida wrongful death laws

Filing a Wrongful Death Claim for a Deceased Spouse

Because your spouse died before you completed the divorce proceeding, the law considers you the surviving spouse. Therefore, as a surviving spouse, you might receive compensation for a wrongful death claim. 

Wrongful death actions arise out of almost any type of personal injury case including:

  • Automobile accidents
  • Medical malpractice
  • Slip and fall accidents
  • Defective product claims
  • Workplace accidents
  • Boating accidents

In Florida, only close family members can recover compensation for a wrongful death claim. Surviving spouses, children, parents, and blood relatives dependent on the deceased can receive damages for wrongful death. 

The personal representative for the deceased’s estate files the wrongful death claim. You could be the personal representative named in the Will if your spouse had not changed their Will. If your spouse did not have a Will, you could petition the probate court to be named personal representative. 

What Damages Could I Receive From My Wrongful Death Action?

As a surviving spouse, you could receive a portion of the damages paid to your spouse’s estate. The damages in a wrongful death action differ slightly from damages in a personal injury claim. 

Damages in a wrongful death claim include:

  • Reimbursement for medical care and treatment between the date of injury and the date of death
  • Reimbursement for reasonable cremation, burial, and funeral expenses
  • Loss of spousal companionship, love, and affection
  • The value of future loss of support and services
  • Loss of parental guidance and companionship
  • The loss of services and support from the date of injury through the date of death
  • Loss of inheritance 

If the person who caused your spouse’s death acted intentionally or with gross negligence, the estate might also receive punitive damages. Punitive damages “punish” the person who caused your spouse’s death, but the estate receives the money ordered by the court.

Money cannot change the situation nor bring your spouse back for your children. Some surviving spouses might be hesitant to seek legal advice about a wrongful death claim because they were in the process of divorcing their spouse when their spouse died.

However, the funds from a wrongful death claim can provide the income and resources you need to take care of your children now that you are a single parent. Seeking legal advice is the first step in protecting your rights after a spouse’s death. 

Contact the Orlando Family and Divorce Law Firm of Conti Moore Law Divorce Lawyers, PLLC for Help Today

For more information, contact our experienced Orlando divorce lawyers at Conti Moore Law Divorce Lawyers, PLLC by calling (407) 831-0203 to schedule a free consultation.

Conti Moore Law Divorce Lawyers, PLLC
815 N Magnolia Ave Suite 100
Orlando, FL 32803
United States

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