The past year has been difficult for many, and with deaths surpassing 400,000 in the United States due to COVID-19, many people in the midst of a divorce want to know what happens in the event their spouse becomes incapacitated, or worse, dies while a divorce is proceeding.

If a spouse becomes incapacitated during a divorce proceeding, a guardian will most likely be appointed by the Court to govern his or her person and property. If the incapacitated individual had signed a valid Power of Attorney prior to incapacitation, this may not be sufficient for a divorce action. The application for a guardianship can be made by a close relative or friend, and if none are available, the court can appoint a neutral person (most typically an attorney) to act on the incapacitated person’s behalf. The process for the appointment of a guardian is governed by the court rules, and depending on the severity of the incapacity, the court may appoint a guardian in a limited capacity, preserving the incapacitated person’s ability to participate in the proceedings to the extent reasonable. Alternatively, the Court may need to appoint a guardian with full authority to act on the incapacitated person’s behalf. Upon appointment of such a guardian, that person may move forward to negotiate and finalize the divorce proceedings, including but not limited to entering a Property Settlement Agreement and Final Judgment of Divorce. If a settlement cannot be reached, the guardian may proceed to trial on behalf of the incapacitated person.

If a spouse dies after a complaint for divorce is filed, the process becomes more complicated. Upon the death of a spouse after the complaint, but prior to entry of a Judgment of divorce, the divorce proceedings are effectively terminated. Thus, any right to equitable distribution under the divorce laws is extinguished. Yet, the court is one of equity, and if a spouse’s s death would lead to an unfair result (sometimes referred to as “unjust enrichment”), the Court will see the divorce through to its conclusion using its authority to fashion a remedy that is fair to the surviving spouse. When determining what course of action to take, there needs to be an analysis of what effect the deaths of the spouse has compared to what a likely result of the divorce would be. For example, if the decedent had made provisions to name the soon to former spouse a beneficiary of certain assets, but the surviving spouse would likely have received more in the divorce, the surviving spouse would seek to have the court move forward with the divorce. Conversely, if the spouse who passed had not changes his or her will and left all of the assets to the surviving spouse, the other survivors may wish to seek the court’s action to finalize equitable distribution.

As a practical matter, the courts allow a surviving spouse in a divorce action to complete the equitable distribution by amending the divorce complaint to include a claim against the decedent’s estate. Thus, the surviving spouse is left to pursue relief by way of a constructive trust under quasi-contractual law, which may be established by the Court as a vehicle by which equity may be accomplished. It is important to keep in mind that there may be significant differences when a matter proceeds against an estate. One example is when a pension or similar retirement plan is an asset of the marriage. Many plans are governed by Federal law, therefore depending on the plan, benefits to a former spouse that are available during the employed spouse’s lifetime may be extinguished upon the death of the employee. The state court cannot change this. In addition, depending on how real estate is titled, the property may pass to the surviving spouse automatically. It is critical that a surviving spouse understand all of these facts prior to contributing with the divorce.