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My wife filed for a divorce and she got diagnosed of ovarian cancer which has metastasized.

Barrington, IL |

If she dies during the course of the divorce, do I get 100% of our marital assets (IRA, 401k, gold coins, life insurance, house, cars ..etc) ? No kids, just lots of assets. I am thinking of contesting it or should I wait until she dies?

Attorney Answers 6

  1. Best answer

    What a harsh world.

    When a party dies during prior to a judgment for divorce, the case dies with him / her. You would be a widower, not a divorcee.

    This can get complicated, however. Divorces in Illinois are bifurcated -- we first do a little case where we dissolve the bonds of matrimony (usually called the "hearing on grounds" or something like that) and then, after the first case, we do the meat-and-potatoes part: dividing up the assets, the kids, and everything else. In Cook County and the collar counties, these two cases are usually done one right after the other -- the second one starts, literally, a few minutes after the first one. In other parts of the state, the practice often is to start the second part of the case later -- sometimes much later (except for the kids). Sometimes the second part of the case may not start until months later.

    If she dies before the first little trial (on grounds) then the case dies with her. Lawyers and judges would say the case "abates." If, however, she lives long enough to get eh grounds part done, and then she dies, the case survives and the court will divide up the property even though she's gone and will turn her share of the property over to her estate.

    So, she very well may ask her lawyer to run into court to bifurcate her case and get teh grounds portion done immediately.

    To fight the case on grounds, you'll almost certainly need an attorney. We have this debate on this forum almost weekly about whether it ever pays to fight grounds. Here is a perfect example (I'm sorry to say) where fighting very well may pay off.

    Questions? Call -- 312-987-9999 -- no charge, no obligation Matrimonial / Family Law free consultation.

  2. her death before the judgment for dissolution ends the divorce case.

    what if anything you get upon her death depends upon how the assets are titled and her estate plan.

  3. Adding to the other attorney's answers, she may petition the court to bifurcate the proceedings based on her rapidly declining health. Bifurcation will result in her being divorced which will sever all assets held in joint tenancy. Therefore, jointly held assets will not go to you but to whomever she designates in her will. Having dealt with an identical case not long ago, this is a complicated factual and legal matter to analyze. You should consult with an experienced divorce attorney who can assist you in pursuing the best strategy.

  4. If your wife dies during the pendency of your divorce, the divorce will be dismissed and you will inherit the marital estate unless she has made other provisions which you might still be able to contest.

  5. Just to add a little to the conversation, if she dies, assets in her name will transfer pursuant to her estate plan. It is not illegal in Illinois for her to intentionally attempt to avoid having assets in her probate estate to defeat your claim to those assets as her husband. (Forced share in Illinois is one-third). If she has the significant portion of marital property in her name, you may end up better off in a divorce than as a recipient in her estate if she has made beneficiary designations and estate plans to defeat your claims to her property.

  6. It depends on how these items are set up. Some have pay on death clauses such as a 401 and of course life insurance. The itesm like the coins and other personal property have no chain of title and possession and control can probably take care of those. The house and cars;if they are held in joint tenancy or tenancy by the entirety with a right of survivorship will pass outside of the Court. The issue becomes finding out how these items are titled to see if you will be the merry widower. She may not pass as quickly as you seem to be anticipating. If she goes into a comatose state and lingers you could be facing property division litigation with your father in law, sister in law, etc., as your comatose wife's guardian and then things get expensive.

    This is a general answer and does not address the specifics of your individual case. To give the specific answer you need our firm needs you to come in for a consultation.

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