Divorce can take a long time to conclude. In New York, the waiting period for a divorce can take a whole year. And so, it is not outside the realm of possibility that one spouse may die before the divorce is even finalized. So what happens in this scenario? Well, that would depend on if the deceased spouse left a will behind, or died intestate, or without a will.
If your spouse dies after you’ve filed for divorce in New York, but prior to the final judgment being made by the court, then the divorce case will be thrown out. While you can divorce someone without their consent, you cannot get a divorce from a spouse who is currently deceased. When it is time for the distribution of an estate, you will be seen as still married in the eyes of the state.
If your spouse dies without a will, or intestate, the deceased spouse’s estate will be handled by the New York intestate laws. Conversely, if the spouse died with a will, then the estate would be handled consistent with the will.
If a person dies intestate, that person’s community property will go to their surviving spouse. Community property is income that was earned during the marriage, and any assets purchased with the income that was accrued during the marriage.
Sometimes, the surviving spouse might need to file a spousal petition to claim and receive ownership of this property. Separate property is given entirely to the surviving spouse if the deceased has no living children, parents, brothers or sisters or even children of a deceased brother or sister (niece or nephew). If there are heirs that fall into any of these categories, the property will be split between the spouse and the heir.
If the deceased spouse left a Will, it must be followed, even if that Will disinherit their spouse, which is not only possible but has happened before. However, a disinherited spouse would still be entitled to at least half of the community property.