The surviving spouse can potentially have difficulties receiving what should be rightfully his or hers. Third parties, including but not limited to, the state, estate lawyers, plan administrators of retirement funds, and relatives can play havoc on the entire process; but the real problem is that death abates divorce. That is, "...under the eyes of the law that marital estate no longer exists [because] it takes two living spouses to have a marital union to dissolve." Under common law, if one party to a divorce dies during the process, the action abates and the decedent’s property is divided according to the law of decedents’ estates where he or she lives. Assets jointly titled, with rights of survivorship, such as bank accounts, stock certificates, insurance proceeds -- that is, assets which pass by operation of law and without reference to a will -- pass to the survivor; yet marital property in the name of the deceased does not.

This very often excludes the surviving spouse from his or her share of property he or she would have received through the distribution of divorce. Indeed, very often in equitable distribution states, the rights of the surviving spouse are greater under the law of divorce than under the law of decedents’ estates.

Abatement, which is the name for the general rule terminating divorce actions when one of the spouses dies during the action, does not create a legal black hole when the parties divorce in a bifurcated action. In this, the parties first divorce and then the court rules on the distribution of the marital estate. Thus the death of a party does not deprive the trial court of jurisdiction.

Many courts have ruled that poor health and impending death are valid reasons to bifurcate a divorce action.

A surviving spouse is not entitled to "the lion’s share" of the marital estate because the deceased partner has no financial needs.

Some courts have held that when the trial court has heard the case -- where the facts and issues have been adjudicated -- and all that is lacking is "the ministerial act of entering a judgment," the rule of abatement does not apply.

Abatement does not apply when one spouse murders the other spouse. In such cases, courts often make one-sided judgments in favor of the victim spouse, wherein the perpetrator forfeits any claim to the marital estate.

In an effort to prevent the difficulties associated with abatement, some spouses draft wills or codicils naming each other as beneficiaries to one-half of the marital estate, "or of as much of the marital property as the parties can agree that the other spouse would receive after the divorce."

Another strategy is to obtain a divorce nunc pro tunc -- "now for then," a legal slight of hand that is in effect a retroactive divorce. Not all jurisdictions permit this.

Sometimes the remedies to the problems created by the death of a spouse during a divorce can be very involved. In a 1990 case, a New Jersey high court ruled that a husband’s death during a divorce prevented his widow from obtaining either equitable distribution "or an elective share of his estate," but she could obtain "the marital share which beneficially belonged to her" by arguing that a constructive trust had been established in the marriage.

Death comes to everyone, often unannounced, but when the death of a spouse seems reasonably possible, it is wise to take steps to avoid the black hole.

Some legal problems require good legal talent. A black hole is one of them.

See also Black Hole; Estate Planning.

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