Janet L. Goehle, Attorney at Law
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You can't divorce a dead person

Couples going through a divorce in Minnesota often face numerous personal, economic, legal and emotional challenges. State courts have also had to address the seemingly perplexing but not entirely unexpected issue where a party to a marriage dies before the divorce is finalized.

When a spouse dies before the marriage is dissolved, the marital relationship no longer exists. When this occurs, any pending divorce or dissolution is terminated. Or, as Minnesota courts state, one cannot divorce a dead person.

A party to a marriage that is ended because of the death of a spouse is entitled to the entry of judgment which divides marital property if court proceedings are completed and the only remaining act is for the court clerk to enter the judgment in the judgment book as directed by the court. Arguably, a person who entered a mediated property settlement with their spouse who later died may be entitled to a court judgment based upon that agreement.

This becomes more complicated if the parties negotiated a settlement agreement but failed to sign it. In a 2005 opinion, the Minnesota Court of Appeals ruled on a mediated property division settlement when the husband died, a personal representative for his estate was not yet substituted and the dissolution was pending. Very importantly, the marital-termination agreement was not signed and approved by the lower court.

The court found that the parties entered into a mediated property settlement. However, they did not sign the agreement nor did the lower court examine it, approve it and incorporate it into a final divorce judgment. The marriage dissolution was not close to being finalized before the husband died. The court ruled that the wife cannot take a share of the mediated dissolution settlement as if it was approved and also receive his estate as heir or surviving spouse because she was still legally married to the husband when he died.

Source: FindLaw, "In Re: Marriage of Retke, No. A04-1507 (Mn. Ct. of Appeals, 2005)," Accessed Feb. 1, 2016

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