Divorce after death

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(Click here for the link to the article at CNN)

You'd probably think it impossible or at least completely unreasonable, but there might actually be a room for that. And a reasonable explanation.

Normally, divorce proceedings are interrupted by death. Also, proceedings examining the validity (existence) of marriage are normally interrupted by death of one spouse.

However, at least Polish law recognises the possibility of investigating the marriage of a deceased person in some circumstances. Divorce, however, is not granted. A void marriage can be declared void and a guilty spouse, if divorce would have been granted, can be declared unworthy of inheritance by the court. But that's where it stops.

So, now you're probably convinced that granting divorce after death may actually be reasonable. Good... except not really. There may be a reasonable cause to do that, but here's one problem: marriage is interrupted by death. Full stop, end, finish. No more. As a result, there is no marriage to dissolve. And a dead person can't be the recipient of any decree because there's no such person on Earth anymore. So it gets complicated.

However, precedent-based inheritance law like they have in the States doesn't have a set of just-in-case provisions, so they can't really block inheritance just like that, because divorce would have been granted. Heck, that would actually be impossible even under Polish law and probably most romano-germanic inheritance laws because of it not being a fault divorce (unworthiness only applies to guilty spouses in substantiated fault divorce claims).

Most people will probably debate whether it's right or wrong to grant the divorce, but I think a lawyer should be more alarmed by the idea of dissolving something which has already been dissolved as if it were extant at the moment. Either that or retroactively divorcing the couple, which would still be problematic, but isn't the case in this scenario, anyway.

In my view, ruling that grounds for divorce existed or not and dealing with inheritance accordingly is one thing and can be right or wrong, expedient or harmful, but decreeing divorce after death would simply be doing the impossible. What's your take?

 

Seems rather convoluted to me. But then most lawyer things seem that way to me.

 

I am confused... why would you get divorce after death? If your spouse is dead, you aren't married, go and do whatever you want...

 

"Until death do us part" The only thing remaining is monetary concerns, if they were to be divorced. Though if someone wants it on record that they were to be divorced, I don't see any reason not to grant them that (after giving them a very strange look, of course ).

 

Some people find more stigma attached to being widowed than being divorced.

 

"until death do you part" ~ I agree

How can you still be considered in 'wedlock' if your spouse has passed away?
the problem is (as with every funeral/divorce) what to do with the cash holdings and property of the deceased (or divorcee).

[ May 30, 2006, 13:06: Message edited by: Soromonu ]

 

Chev,

While the article does say that the husband "would have wanted it this way" I do not think that is the primary reason why they are pushing for the divorce to be issued. It seems that the motivating factor is to figure out what happens to his estate (inheritance). This is especially true if his will was going to change when his divorce became official, which would have happened if he lived one more day. The article even says that granting the divorce would "tie up loose ends" in this particular case.

Now, I agree that granting a divorce seems redundant in the case of one of the spouses being dead. It's ending a marriage that has already ended. And it seems counterintuitive to say the least that you are stopping something that's already been stopped. However, to me, it seems like a sematic point. If granting a divorce makes it easier to resolve issues involving his estate, and it can be reasonably concluded that some difference exists between what would happen if he was or wasn't divorced (and they are in fact looking into exactly that) then I can see cause to grant the divorce. However, if they conclude that what happens to his estate is the same, regardless of whether or not the divorce is finalized, then I see granting a divorce as an exercise in redundancy, and not necessary.

 

Yeah, I realise that, as always, the deep underlying motive is a financial one, but I think the "would have wanted it this way" is also somehow important here. Note that they can always adjust the inheritance without granting the divorce. The article mentions a couple of cases of declaring the surviving spouse inheritance-unworthy.

It seems the lawyer isn't pursuing this kind of ruling, but rather a complete divorce. Perhaps she distrusts the less radical means, but it does seem like she wants to break the marriage for whatever reason, rather than just settle the financial matters.

Oh, just another thing that's just come to my mind. When does inheritance happen? When the de cuius (lawyer term for the deceased person leaving the inheritance) dies. Divisions, settlements etc are effective from the time of that person's death, not from the date of settlement. So we need to ask when divorce comes to force. And divorce comes into effect from the moment of ruling.

Let's imagine someone files for divorce on 30th May 2006. He dies on 30th June. Even if divorce is granted on 30th July, it's still a month after the moment in which the plaintiff dies and his property falls to his successors. From an orderly legal point of view, her own part of the inheritance mass already belongs to the surviving spouse when the divorce is granted and can thus have no effect on inheritance. As a result, the family of the deceased husband still has to obtain a decree that the wife was unable to inherit from the husband at the time of his death.

So, rationally, any such divorce decree would have to be made retroactive to have any effect on inheritance.

Note that even religions, dealing with spiritual life and the afterlife, are criticised or even outright ridiculed for divorcing dead people. So should secular authorities deal with the dead like that?

 

Normally, I would say that they shouldn't. However, it's not like this guy just had a heart attack and died, or died from some unexpected illness. I keep coming back to this section:

This to me seems like a special case. While it does not explicitly state this, it certainly suggests that he was murdered. In another part of the article, they state it was a "violent attack". So obviously, this is not a death from natural causes, and it certainly doesn't appear to be a suicide either.

So clearly, something has to be legally done regarding his estate. I agree that they could issue a separate ruling without granting a divorce, and if that's your point, then I agree. However, it seems like it is possible that either his ex-wife or someone else who would benefit from his death may have been involved with this. Obviously, that gets involved with the criminal code of law, which is entirely separte from the civil code that the divorce was a part of. However, it would be naive to belive that criminal actions do not bear some weight in civil law suits (the O.J. Simpson case springs immediately to mind - he was declared innocent of murder in the criminal case, but was found liable in the wrongful death case argued in civl court).

 

Yeah, they can issue a ruling fixing inheritance without granting divorce. Be it by excluding the spouce who was being divorced at the time of the death of the de cuius or by excluding someone taking part in the person's death or last will fraud or some such, all without granting a redundant divorce. That's my point.