When a spouse dies during the divorce process…

Dear Mrs Macaulay,

If a spouse dies during the divorce process (filed but no decree granted yet), is the surviving spouse still entitled to their estate, and still responsible for making medical and funeral decisions? I want to know if the fact that the divorce wasn’t yet granted, means that the spouse is still the legal spouse, with all entitlements under the law. The deceased’s family says no, but I think otherwise. Note that it was the deceased spouse who had filed for divorce.

I am rather happy that you wrote to me about your circumstance, which is in fact a legal issue that you and the family of your deceased husband need to professionally and legally settle. Yes, he is still your deceased husband, and his family have no legal, moral or factual right to completely exclude you as his still legal wife, his widow, in law. You should all get together to make the arrangements for his funeral.

What happens in law since he died before the court granted and pronounced your marriage to be dissolved by granting the decree nisi and then the absolute, is a legal matter, which you and his family should have sought legal advice about, regarding the effect of his death on your status, and about the administration of the issues of inheritance of his estate, if he died testate (left a will), or intestate (didn’t leave a will. Disagreeing without proper resolution just creates bad blood and problems which are not helpful to anyone.

That being said, let me try to make you and his family members understand the situation. Once your husband died during the currency of his divorce petition in the Supreme Court, before its final resolution by a judge of the court, and so no decree absolute was issued before his death, your marriage, in law, has not ended, but still exists. You must however bear in mind that you as the surviving spouse would be a ‘’surviving estranged spouse”— your entitlements therefore would be as an estranged widow, which would bring into play the laws relating to the administration of the deceased’s estate, be it for probate or intestatacy processes.

Upon his death his divorce proceedings, whatever stage it had reached, ended automatically the moment he died, and the court’s jurisdiction to grant the divorce also automatically ended. The court cannot grant a decree of dissolution of a marriage to a dead person. And you will not have the rights of a wife as a “living” spouse, but that of a legal but estranged widow. You are not in the position of a surviving spouse of an existing day-to-day married couple, as such a relationship had ended between you both. You were estranged husband and wife; and on his death you became his estranged widow because your legal union continued to subsist upon his death, which ended his divorce.

The laws which would therefore come into play would be those which relate to the administration of his estate — the Wills Act, the Intestate’s (Estates and Property) Charges Act, the Administrator General’s Act, the Property (Rights of Spouses) Act, and the Inheritance (Provision for Family and Dependants) Act. The ones which apply to your circumstance would depend on whether he left a will or not.

You can go to the Administrator General’s office and seek advice and assistance. In addition, I strongly advise you to go and retain the services of a lawyer to help you through the process, especially as a dispute has already arisen between you and your deceased husband’s family as to your status and rights. You clearly need legal assistance and comprehensive legal advice.

Please act as soon as possible as there may be a time limit to make an application and be able to proceed with it, especially the last Act listed above.

All the very best.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.