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Going through the divorce process is tragic enough as it is. But, what happens when your ex unexpectedly passes away before the divorce is finalized? A lot of people are caught off guard when their spouse passes away in an already stressful and unpredictable time. If your ex passes before your divorce is finalized, you may have questions regarding what happens with the children, assets, or marital debt. Though these topics were previously handled by a family law court, what will happen now that your ex is no longer living? Please keep in mind, these issues are very fact specific and can get tricky. You should speak with an attorney about your specific circumstances.

Probate Court

When you’re going through a divorce, a family law court has jurisdiction over the issues pertaining to your divorce. In this case, having jurisdiction means that the court has the authority to make decisions regarding issues relevant to the divorce such as custody, assets, debt, etc. However, when a person dies during the divorce process, some of those issues will move to a probate court. If a person dies before their divorce is finalized, they are still considered to be married. However, that does not mean that the surviving spouse will inherit their ex’s estate just because they’re still married. 


The surviving spouse will be awarded custody of the children. Extended family members, such as grandparents, generally do not have any custody rights pertaining to their grandchildren. However, if the surviving parent is unfit, or does not desire to be a parent, the grandparents, other family member, or another person who has assumed the role of a parent for the children may be able to obtain guardianship of the children through the court. Whoever is seeking custody of the children will need to file for guardianship, even if nobody is contesting it. Depending on the guardianship awarded by the court, if the surviving parent becomes able to be responsible for their children, or if the parent desires to be in their child’s life, the parent may be able to file for custody of the children. 

Marital Assets

Since you are still legally married if your spouse dies before the divorce is finalized, you will maintain that legal designation. However, if prior to your spouse’s death, a family law court had ruled that your spouse would get possession of the family vehicle, that vehicle will likely be designated as separate property and distributed according the your ex’s will or trust or be distributed pursuant to Utah law.  Any disagreements regarding who will inherit the property that has already been awarded as separate property by the court in the divorce will need to be handled in a probate court.

Marital Debt

Debt, for the most part, works the same way that assets do. If the court in the divorce has ordered that your spouse will be responsible for the debt their estate should be responsible for paying the debt and you are less likely to be responsible for it. If there is marital debt that hasn’t been ruled on in a family law court, a probate court will likely determine who is responsible for the debt. If your spouse had assets, such as a car, that they still owed money on at the time of their death, the debt will be addressed by your ex’s estate . If you or someone else keeps that asset, you will likely have to assume the debt associated with it. If there is debt that was only in your ex’s name, that debt will likely either be paid by their estate or canceled. If there was debt in both yours and your ex’s name, you may be responsible for that debt.


 If there are concerns about the surviving parent’s ability to manage the children’s estates, it is possible for surviving relatives to file for conservatorship over the children’s estates. Normally, children don’t have vast estates that require a conservatorship. However, if a child has a trust fund, or a sizable savings account, and the surviving spouse has been found unfit to manage the child’s assets on behalf of the child, a conservatorship may be necessary. Typically, conservatorships protect a child’s assets from being squandered or mismanaged before the child is old enough to make informed decisions about their estate. This role may also be completed by an executor or a will or the trustee or a trust..

If You Have Concerns about a Loved One

According to estimates from the World Health Organization, over 700,000 people commit suicide each year. Divorce and relationship issues have been known to increase a person’s risk for suicidal ideation, especially among men. The process of divorce can be an incredibly painful and tumultuous journey for many people, especially if a person was blind-sighted by the divorce, or not ready to face the reality of a divorce. If your spouse, or relative has made the devastating decision to take their own life, our hearts go out to you. The pain of losing a loved one to suicide or other causes can last a lifetime. If you have a loved one who is currently going through a divorce, it is more important now than it’s ever been to reach out to them. A lot of people struggle with intense symptoms of depression and anxiety during the divorce process. If you have concerns that someone you love may be considering ending their own life, don’t hesitate to contact them today. If you yourself are considering ending your life please reach out for help today. The suicide prevention hotline provides a way for those in crisis to speak, or chat, with a trained crisis worker. The number for the suicide prevention hotline is 1-800-273-8255. Do not wait to get the help you deserve today. 


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