Dealing with a divorce is usually an emotionally difficult experience. Unfortunately, sometimes those difficult emotions are further complicated by the death of one of the spouses. As uncomfortable as it is to think about, spouses do sometimes die during the pendency of a divorce proceeding, usually due to illness. Parties facing the possibility of such a tragedy often wonder what would happen next, but sometimes feel uncomfortable asking.

When a party to a marriage dies, the marriage relationship no longer exists. In re Marriage of Rettke, 696 N.W.2d 846, 850 (Minn. App. 2005). If this happens during a divorce, the divorce case immediately ceases, or abates. Once that happens, the district court cannot take further action or hear any motions in the dissolution case. Id. at 851 (“[O]nce husband died, this dissolution proceeding was (permanently) over. The district court erroneously heard motions as part of the pending dissolution action.”). All marital property is inherited by the surviving spouse, just as it would be if the parties had been happily married and had never started a divorce. Any non-marital property of the deceased spouse is inherited in accordance with probate law, which often means that the surviving spouse inherits.

The only exception to this is when the divorce is almost finalized, with nothing left to be done but for the court administrator to enter the judgment. Tikalsky v. Tikalsky, 166 Minn. 468, 471, 208 N.W. 180, 181 (1926). In other words, for this exception to apply, the court must have either approved and signed an agreement made by the parties, or held a trial, signed a written judgment, and directed court administration to enter the judgment. It is not enough that the parties came to an agreement –even written agreement – about how their property should be divided before the death. Rettke, 696 N.W.2d at 851.

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