DEATH OF A SPOUSE DURING MARITAL LITIGATION CAUSES COMPLEX PROBLEMS

Question: My husband was killed in an automobile accident not six weeks after I sued him for divorce, alimony, and my share of about $100,000 in marital assets. Before he died, the court had awarded me temporary alimony. After our marriage, but before his death, my husband inherited nearly $400,000 from his family which my lawyer had told me I could not touch because it was non-marital property. I learned after his death that he had cut me out of his will. Can I continue the case in the family court to get my share of the marital property? Will I get continued alimony? What can I do about him cutting me out of his will? Whatever I do, his family told me that they would fight me every inch of the way.

Answer: Although the answers to your questions depends on where you live, generally speaking, (1) alimony and support terminates with the death of the obligor -- unless there is an agreement to the contrary, and (2) your right to a share of the marital property -- which became vested when you filed the marital litigation -- are not divested by the death of your spouse. This means that your husband's estate will be substituted as a party, and you can continue to litigate to conclusion your entitlement to a share of the marital property; but you will be limited to receiving a share of marital assets.

As to your question about being cut out of your husband's will, assuming you did not sign a premarital agreement or other document by which you waived your rights to your husband's estate, most states have laws which prevent one spouse from cutting the other out. In these states, you have the right to elect to take your statutory share -- generally one-third -- of your spouse's entire estate, whether it consists of inherited assets or not.

Assuming your husband left an estate of $500,000, your one-third interest would approximate $166,000. On the other hand, your maximum marital property division could bring you $50,000. It appears to us that since you could conceivably be litigating in two courts at once against your husband's estate, it would behoove your deceased husband's family to rationally discuss settlement rather than fighting for the sake of fighting. You should ask these questions of your lawyer who, in our view, should help you understand your options and then direct you down the correct path.

Jan Collins Stucker is an award-winning writer and editor. Jan Warner is a matrimonial, elder, and tax attorney. Both are based in Columbia, South Carolina. Flying Solo is seen in newspapers throughout the United States and can be found on the Internet at http://www.flyingsolo.com.

Please email your questions to janwarner@flyingsolo.com or by mail to P.O.Box 11704, Columbia, SC 29211. To receive "How To Care For Aging Parents: A Complete Guide," a 480 page, well-organized, understandable, comprehensive road map to help adult children care for their aging parents, send your check for $17.95 payable to "Aging Parents" to us, and we'll make sure you get your copy.