What Happens If My Spouse Dies in the Middle of Our Divorce?

Posted on March 10th, 2021

Divorce is emotionally stressful and can easily become the worst moment of your life depending on the facts surrounding the separation. But what happens if you’re in the middle of a divorce and your spouse dies? What are you responsible for and what options do you have? Kalinoski Law Offices explains.

Divorce Proceedings and Death of Spouse

According to Pennsylvania Law, 23 Pa.C.S., if one spouse dies while a divorce is pending and the grounds for divorce have been established, the court can proceed. But what is required to show grounds for divorce?

In the case of fault divorce where one spouse was accused of engaging in some type of misconduct that led to the divorce, evidence like emails, photos, videos, and/or witness testimony must show:

  • Adultery
  • Abandonment
  • Cruelty such as domestic violence
  • Bigamy
  • Conviction of a crime and imprisonment

In addition to fault divorces, there may also be a no-fault divorce where both spouses had consented to the divorce and the grounds are automatically established. In addition, if one party does not sign the divorce affidavit, the other party can wait until the couple has been separated for one year, and then can sign an affidavit confirming the one-year separation. If the other party does not sign, the court can still grant a divorce unless a counter-affidavit is filed. In the case of death and if the one-year separation has taken place, the grounds for divorce are established.

What happens if the grounds for divorce haven’t been met?

If the grounds for divorce had not been established at or before the date of death, family court will not be able to handle the divorce and the division of the marital assets is determined under the Probate Code instead of under Pennsylvania equitable distribution law.

If the parties haven’t established grounds for divorce, division of the marital assets is determined under the Probate Code instead of under Pennsylvania equitable distribution law.

Not only does the division of assets change if a spouse dies during divorce, but so does child custody.

In the case where divorce grounds have not been met because your spouse died as a result of an accident where he or she was not at fault, you may be able to sue for damages. However, it is important to meet with a family law attorney who can guide you through the process.

If your spouse dies while you’re in the midst of a divorce, you’ll need a compassionate team on your side to guide you through your rights and responsibilities.

Death of a Spouse During Pennsylvania Divorce

Divorce is complicated enough, but when you lose your spouse in the middle of the process, you may wonder what rights and responsibilities you have. If you have Kalinoski Law Offices on your side, you have nothing to worry about. Attorney Kalinoski has both the legal experience and empathy and compassion needed to get you through this trying time. Contact the Scranton divorce attorney, Craig Kalinoski, today.

Category: Divorce

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Craig Kalinoski
Craig Kalinoski

Craig P. Kalinoski is a respected attorney serving clients in Scranton, Pennsylvania. With a focus on Family Law, Criminal Defense, and Civil Rights, he has established himself as a top-rated legal professional. Recognized as a Rising Star and admired by peers, Craig's commitment to excellence sets him apart in the legal field.


We fight for the rights of our clients in a wide spectrum of practice areas, ranging from criminal defense to family law and personal injury.

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