If a spouse dies before the judge enters a divorce decree, the divorce case is over. It is dismissed, and it cannot be continued by the estate.
Why the Case Dies
A claim for divorce belongs to the spouse personally, so there is nobody left to press it. In Segars v. Brooks, 248 Ga. 427 (1981), a wife filed for divorce and died of a gunshot wound, allegedly caused by her husband, six days after he answered. The Georgia Supreme Court held that “the unadjudicated claim for divorce was purely personal and abated with the death.”
Equitable Division Goes With It
The wife’s administratrix asked to be substituted so she could pursue the wife’s claim to the marital residence, which was titled in the husband. The Court refused. A claim for equitable division “arises from a marital relation and divorce” and “cannot be filed or maintained separate from divorce proceedings.”
In the Court’s words, “no divorce means no equitable division of property.”
That was so even though the pleadings would have supported a decree. “The law favors marriage, not divorce,” the Court explained, and “we must presume until entry of the divorce decree that the parties might have reconciled and continued their marriage.” Because the couple might still have stayed married, no inheritable right in the property had ever arisen.
The Court declined to change the result because of what the husband was alleged to have done, noting that criminal law, not the divorce court, addresses that.
Not Everything Dies
Claims that stand on their own survive. In Segars itself, the wife’s separate equitable claim to the property on a resulting trust theory survived her death, and the Court reversed the dismissal of it. A settlement agreement the spouses already signed can also outlive the divorce, because it is a contract.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!