When Death Occurs Mid-Divorce

A scenario commonly encountered within estate planning is when an individual dies while negotiating a separation agreement with their spouse, or when in the midst of divorce proceedings.  While a divorce order will void specific bequests to a spouse, merely initiating negotiations or proceedings will not.

In these circumstances, most lawyers will advise their clients to draft a new will and consequently discover whether title to the matrimonial home is held as joint tenants, tenants in common, or individually.  Differentiating between these is very important.

When more than one person owns the same property, they can hold title as joint tenants or tenants in common.  The main difference is that when a joint tenant passes, title passes to the other owner by right of survivorship.  Contrastingly, when a tenant in common dies, their share passes to their heirs.

Since assets held jointly do not pass through the estate, this means that executing a new will excluding a spouse will not disentitle them to their right of survivorship over property held jointly.  To effect a disinheritance, it is necessary to sever the joint tenancy. 

See Suzana Popovic-Montag and Ian M. Hull, When a Spouse Dies Mid-Divorce, Huff Post Business, July 24, 2014.