Divorce is stressful and not usually fatal, but when a spouse dies in the course of a divorce, the outcome for the surviving spouse depends heavily on the timing and circumstances of the other’s demise.
An old adage is that you cannot divorce a dead person. However, death of a spouse does not necessarily serve to terminate all pending marriage dissolution proceedings. The impact of death will depend greatly upon the circumstances of the death, the stage of the proceedings, and other important factors. If death during divorce is imminent or even a distinct possibility, clients and their attorneys can take steps early on to maximize the extent to which assets can be directed pursuant to client wishes.
Basics of Abatement
At the outset, it should be noted that in most cases the death of a party during divorce proceedings will serve to immediately terminate the divorce action. The reasoning is that upon death the marriage relationship “no longer exists” so there are no longer any marital bonds to dissolve. In one case, the court succinctly stated the concept as follows: “You can’t divorce a dead person.”1 Thus, any pending dissolution abates, requiring a formal dismissal of all proceedings.
When death of a spouse occurs in the early stages of divorce, the general abatement rule is almost certain to apply. The divorce is over. None of the important rights of the parties are likely to have been litigated, so in essence the parties stand much like a typical married couple as to most estate planning issues. However, Minnesota law does have a few wrinkles depending on the exact circumstances under which the death occurs, especially when the death occurs much later in the proceedings.
For example, the abatement rule applies even in cases where a layperson would think that the divorce is essentially complete. In one Minnesota divorce proceeding, In Re Marriage of Rettke2 a spouse died following “settlement” of the case after both sides met with a neutral mediator and signed a written mediation agreement. A more formal stipulation was in turn prepared by counsel for submission to a judge, but that document was never signed by both parties. The ruling by the Minnesota Court of Appeals in 2005 was that because any divorce settlement requires explicit approval by the court and not just the parties, the settlement was not complete. As a result, the divorce action abated upon the death of the spouse, in spite of the signed mediation agreement.
Even if the parties in Rettke had signed and filed a fully negotiated stipulation that was more formal and complete than a mediation agreement, it is still likely that the untimely death would have served to terminate that case. The reasoning would be that because a dissolution judgment must be approved by the court, the action still abates upon the death of one of the spouses, even if all the terms of the divorce have been fully negotiated. The district court has the duty to protect the interests of both parties and all the citizens of the state to ensure that the stipulation is fair and reasonable; the court must exercise its independent judgment based upon the facts of the case and may refuse to accept the stipulation.3
A line of Minnesota cases from the 1920s further illustrate the fine distinctions that may be drawn in abatement cases, even when it appears that the court has already approved the divorce. Surprisingly, two of the cases actually allowed the retroactive entry of a divorce after death of a spouse. In 1923, the Minnesota Supreme Court held that a divorce decree could be officially “entered” in spite of the death of the husband, but only under very narrow circumstances. In that case, the divorce proceedings had long been completed, with the presiding judge issuing findings of fact, conclusions of law, and even an order for judgment.4 Due to an apparent administrative error, however, the actual final “judgment” had never been entered by the court clerk. Technically the parties had never been divorced. When the husband died approximately ten years after the proceedings, the mistake was noticed, and eventually the district court entered a divorce decree nunc pro tunc. On appeal, the court noted that the original trial judge had determined all issues presented, and had even directed that judgment divorcing the parties be entered. The retroactive entry of the decree was affirmed on appeal.
In 1926 the Minnesota Supreme Court again approved a judgment granting a “retroactive divorce.” Again the parties had thought a divorce decree had been entered, and again the original trial court had issued findings, conclusions of law, and an order for judgment. The reason for lack of a decree was described in the opinion as “unexplained neglect of someone.” Here the husband died four years later, and the divorce judgment was entered nunc pro tunc (retroactive) to a date prior to his death.5
A year later the Minnesota Supreme Court refused to allow entry of a divorce decree nunc pro tunc where all issues had not been determined.6 In that case, there were no findings, no conclusions, nor any order for judgment. Rather, the record consisted merely of court minutes indicating a divorce had been granted, without any language regarding the actual terms of the decree. These entries were held as insufficient for the court to enter relief nunc pro tunc. The surviving spouse was allowed to inherit from the deceased spouse rather than having assets divided pursuant to a divorce decree. Thus, death of a spouse abated that action.
Perhaps these old cases now have reduced importance given that current divorce decrees typically contain findings of fact, conclusions of law, and a judgment and decree all combined into one document. Nevertheless these older cases do emphasize the importance of obtaining final court approval prior to death of a party. Situations may still come to light where final approval was apparently given by a judge but the actual decree has not yet been entered due to clerical error or some other mistake.
A more recent trend that could greatly impact how attorneys plan for death during divorce is for the judge to enter a partial decree, leaving other issues for later determination by the court. In bifurcated dissolution proceedings,7 the judge exercises discretion to enter a divorce decree early in the dispute to sever the marriage relationship while certain issues such as valuation, nonmarital claims, and final division of assets remain before the court. The Minnesota Court of Appeals has held that where death of a spouse occurs after the court enters judgment dissolving the marriage, any unresolved issues of property division in the remaining portion of the dissolution proceeding do not abate and the district court retains jurisdiction to decide these issues.8 Perhaps one could refine the old adage to be: “You cannot divorce a dead person, but you can continue the proceeding to decide unresolved property disputes.” Rather than dismissing the case upon death of a spouse, the court substitutes the personal representative in place of the deceased spouse within the dissolution proceeding. This approach is also generally applied when questions arise regarding post-decree relief.9
Death During Appeal
A number of Minnesota Supreme Court cases have discussed the issue of abatement of the action if death of a spouse occurs during appeal. In a 1931 case, the supreme court ruled that where judgment granting the divorce had been entered along with a decree fixing property rights, and the husband died during a subsequent appeal, the action was not abated, because the judgment of divorce had already been entered. The appellate decision not only affirmed the substantive divorce rulings of the trial court, but also held that when a party to a divorce action dies after the judgment but pending an appeal concerning the property rights affected by the judgment, the personal representative of the decedent will be substituted. Thus, the abatement argument was denied.10 On the other hand, in 1958, the Minnesota Supreme Court ruled that when the appeal was made pursuant to filing of a supersedeas bond, which stayed all proceedings in the lower court, the action did abate upon death of one of the parties. In that case, no judgment had ever been entered; in effect the case had been put on hold pending an appeal requesting a new trial or amended findings. Following the death of the wife, the Minnesota Supreme Court terminated the appeal and remanded for outright dismissal of the case, stating that due to the death of a party and no judgment of divorce having been entered below, all issues on appeal were moot.11
In most cases, death during an appeal will not automatically terminate the case. The vast majority of appeals in marriage dissolution cases come after the formal entry of judgment at the trial court level. Unless one of the parties is questioning whether there has been an irretrievable breakdown of the marriage relationship, the divorce judgment itself is rarely at issue. The appellate rules specify that if one party dies during appeal, a legal representative or a successor in interest of the deceased party may notify the court and be substituted in place of the deceased party.12
What if the death is the result of a homicidal act by the surviving spouse? Current Minnesota law states that the surviving spouse is not entitled to share in the estate or other benefits of a deceased spouse if the spouse “feloniously and intentionally kills the decedent.”13 The statute sets forth a number of categories of circumstances where the murderous spouse may not receive financial gain. Most obvious, the surviving spouse is precluded from any benefits under the will or the estate of the decedent, including any intestate share, any elective share, descent of homestead, exempt property, or family allowance. Another portion of the statute specifies that the killer has no rights of survivorship, precluding a claim to joint tenancy in real or personal property, or a claim under joint bank accounts and the like. Death benefits under a life insurance policy otherwise payable to the killer are also barred, even when the killer would have received funds indirectly as an owner of some entity named as beneficiary of the life insurance policy, to the extent of such ownership. In general, the statute operates to treat the killer as if he or she had predeceased the decedent.
Taking Proactive Steps
Counsel should urge divorce clients to consider estate planning issues even at the early stages of divorce. Most spouses anticipating a divorce will not want the other spouse to inherit from them. The Minnesota Uniform Probate Code does have a provision that upon divorce, a person is no longer considered a “surviving spouse” even if still named in a will, beneficiary provision, or the like.14 However, that statute only has impact if the marriage “has been dissolved or annulled,” and does not take effect merely upon commencement of a divorce action.
In several aspects of estate planning, the mere commencement of the divorce action may trigger a few significant changes which benefit the client. First, any power of attorney or health care directive executed by one spouse in favor of another spouse is automatically revoked upon commencement of divorce proceedings.15 Second, the right to control how to dispose of the body of a deceased spouse by burial or cremation may be affected. If a spouse dies during divorce, family members of the deceased can seek a court order determining that the surviving spouse was estranged from the decedent, thus defeating any right the surviving spouse may retain to control disposition of remains.16
If the client has a serious medical problem, counsel should seek bifurcated hearings so that the divorce itself can be entered promptly. Then, any contested issues such as valuation or disposition of marital property can be litigated if necessary by substituting the personal representative in place of the deceased spouse.
The very nature of the divorce process serves to limit some estate planning options. Standard language on a summons for dissolution of marriage must by statute contain certain restraining orders.17 For example, the summons language bars either spouse from changing beneficiary designations on life insurance. Restrictions are also placed upon certain transfers that would remove assets from the marital estate. However, the restraining language does not bar either spouse from executing a new will, expressly terminating a power of attorney, changing a health care directive, severing joint tenancy of real estate, or initiating other estate planning in anticipation of divorce. In some cases an antenuptial agreement will also bar certain options.
Finally, care should be taken when settling a divorce case where the stipulated language includes waivers or releases that may be effective merely upon signing. In most cases any language in a Marital Termination Agreement or other settlement document should be carefully worded as being effective only upon approval by the court and entry of the decree. Broad and seemingly final waivers of spousal rights or benefits should be contingent upon the entry of the decree rather than being effective at the time of signing by both spouses.18
It is important to understand the application of the abatement rule in dissolution proceedings. With rare exceptions, the death of either party prior to entry of a divorce decree will result in abatement of the action and require dismissal of the case. If death of a party entering divorce proceedings is imminent, key proactive steps should be taken by counsel including prompt commencement of the action and possibly bifurcation to immediately dissolve the marriage, leaving other matters for later determination. Substantial estate planning can be undertaken even though the spouse may be subject to typical dissolution restraining orders.
Douglas P. Radunz is a Minneapolis attorney who has practiced for over 25 years in the areas of family law, estate planning, real estate, and business law. He is a graduate of the University of Minnesota Law School. Visit www.radunzlaw.com to learn more.
1 In Re Marriage of Rettke, 696 N.W.2d 846 (Minn. App. 2005).
2 In Re Marriage of Rettke, 696 N.W.2d 846, 850 (Minn. App. 2005).
3 Karon v. Karon, 435 N.W.2d 501, 503 (Minn. 1989); Toughill v. Toughill, 609 N.W.2d 634, 639.n.1 (Minn. App. 2000).
4 Schneider v. Grimes, 156 Minn. 25, 193 N.W. 942 (1923).
5 Tikalsky v. Tikalsky, 166 Minn. 468, 208 N.W. 180 (Minn. 1926).
6 Anders v. Anders, 170 Minn. 470, 213 N.W. 35 (1927).
7 Those cases explicitly or impliedly approving the concept of bifurcated divorce proceedings include Sefkow v. Sefkow, 427 N.W.2d 203, 212 (Minn. 1988), Gabrielson v. Gabrielson, 363 N.W.2d 814, 815 (Minn. App. 1985) and the unpublished opinion of Donnelly v. Donnelly, 1997 WL 343107 (Minn. App.). Bifurcation appears to be discretionary with the trial court, as there seems to be no authority to require the court to bifurcate a case.
8 Risk ex rel. Miller v. Stark, 787 N.W.2d 690 (Minn. App. 2010).
9 Stieler v. Stieler 244 Minn. 312, 70 N.W.2d 127 (1955).
10 Swanson v. Swanson, 182 Minn. 492, 234 N.W. 675 (Minn. 1931).
11 Wegge v. Wegge, 252 Minn. 236, 89 N.W.2d 891 (Minn. 1958). The Wegge court also acknowledged the distinction between abatement of the underlying divorce action and abatement of the appeal. In Wegge, issues on appeal were rendered as moot, as the case was remanded with instructions to enter dismissal of the divorce action.
12 Minnesota Rules of Civil Appellate Procedure, Rule 143.02.
13 Minn. Stat. §524.2-803.
14 Minn. Stat. §524.2-802.
15 Minn. Stat. §523.08; Minn. Stat. §145C.09, Subd. 2. On the other hand, beneficiary designations to a spouse, and provisions in wills or revocable trusts in favor of a spouse, are generally not automatically revoked until an actual decree of divorce is entered. Minn. Stat. §524.2-804.
16 Minn. Stat. §149A.80, Subd. 3. See also Subd. 2 of §149A.80 for priority of other family members concerning disposition of remains. A health care directive or other document executed by the deceased giving disposition decisions to a nonspouse may also come into play.
17 Minn. Stat. §518.091.
18 See also, Susan F. Bullard, “Unintended Waiver of Spousal Rights: When is a Spouse Not a Surviving Spouse?” 60 Bench & Bar of Minnesota No. 11, (December 2003). This article provides a detailed breakdown of various rights that may be waived in a marital termination agreement or antenuptial agreement, and discusses whether broad language is adequate to waive certain specific probate rights such as elective share, homestead, and maintenance rights.