When a Party Dies During the Divorce

From time to time, after a dissolution of marriage action is filed, we experience the death of one of parties before the case has concluded. Depending on whether the loss is relatively imminent, and both parties are aware of the circumstances, family law lawyers can help plan accordingly to ensure the litigant’s wishes are carried out.


When we are aware of an impending death (e.g. a person is terminally ill), the lawyer representing the ill spouse typically seeks a “bifurcated” judgment for dissolution of marriage. In short, a bifurcated judgment means that the judgment for dissolution of marriage can be entered separately, usually on an emergency basis, but the remainder of the substantive issues, such as support and property division are reserved until a later date. Absent a judgment, the dissolution of marriage action would “abate”, or terminate if one of the parties were to die during the proceeding, and the domestic relations court would lose jurisdiction, or authority, to make any decisions about financial matters. Thus, bifurcations generally allow the parties to get divorced relatively but ensure both still have his or her reserved property issues heard before the court even if one spouse dies.


Bifurcated judgments of dissolution of marriage are controlled by Section 401(b) of the Illinois Marriage and Dissolution of Marriage Act, which provides:


“Judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved [,] or made provision for * * * the maintenance of either spouse and the disposition of property. The court shall enter a judgment for dissolution of marriage that reserves any of these issues either upon (i) agreement of the parties, or (ii) motion of either party and a finding by the court that appropriate circumstances exist.


The death of a party subsequent to entry of a judgment for dissolution of marriage but before judgment on reserved issues shall not abate the proceedings.” 750 ILCS 5/401(b) (West 2015).


Depending on the facts, it may behove both spouses to agree to the bifurcation to ensure the matter does not fall to the probate court where the probate court there will focus more on property rights instead of what constitutes a fair and equitable distribution. If there is no agreement, either spouse can move the court for entry of a bifurcated judgment.


As a general rule, bifurcations are disfavored because of “potential entanglements” that could arise after the bifurcation. For example, property values can change between the date of the bifurcation and the date of the final judgment dividing the assets. However, where there is an impending death courts seem inclined to grant them.

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