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Probate and Family Court: What Happens When Your Ex-Spouse Dies

Probate and family court judge working at desk.

When a person passes away during the divorce process or after it is finalized, the surviving spouse (or ex-spouse) may have to go to probate and family court to manage the estate and make arrangements for themselves or their children. Learn more about how the court system handles these legal matters, what solutions they can provide, and see if seeking advice from a lawyer is beneficial.

What is the Difference Between Probate and Family Court?

Probate court deals with the matters related to a deceased individual’s estate, while family court tends to address more personal and familial matters such as parental rights and responsibilities, spousal and child support, custody arrangements and other family-related issues. Depending on the state, these two courts are either separate entities or are merged into one. For example, in Arizona, probate and family court cases are heard by different divisions within the County Superior Court system.

What Happens to the Family Court Case?

This depends on the applicable state law. In Arizona, if a spouse dies before the divorce is completed in most situations the couple is not divorced. The one spouse’s death ends the divorce action, pursuant to Allen v. Allen, 628 P.2d 995 (1981). However, any orders that were put in place by the divorce are legally binding though.  So if the court ordered spousal support or child support and it was not paid, those orders are enforceable against the estate of the deceased. 

What Happens When Your Ex-Spouse Dies And You Have Minor Children Together?

When a divorcing couple has minor children together, the death of one parent may lead to complications. Here are some common issues that may come up:

Who Has Custody?

Regardless of which parent had custody, after the custodial parent dies, the surviving parent will be considered the child’s natural custody.

Did Deceased Parent Have a Will or Trust?

If the deceased parent had a will or trust, then those documents probably control who gets the parent’s assets. However, don’t assume. It is possible for someone to write a will or trust that violates the terms of a Divorce Decree. So, the surviving parent should see a lawyer to ensure that the deceased parent followed the terms of the divorce decree.

If the deceased parent did not have a will or trust, then a probate may be needed. Don’t assume you know the answer to this. Consult a probate lawyer to learn the next steps.

A Recent Case We Handled.

Our firm recently helped the surviving ex-wife handle the estate for her deceased ex-husband. He had been a lawyer. They had minor children together. The ex-husband’s sister worked for her brother as an assistant in his law firm. When the lawyer died, the sister proceeded to manage the law firm (even though she technically had no legal right to do so). The law firm could have had value and could have been sold. However, it had no value after the clients were sent away and the firm’s website was taken down.

The lawyer’s family hated the ex-wife (mother of their children). Nevertheless, under Arizona law, the ex-wife ended up becoming the Personal Representative for the deceased lawyer’s estate. Under A.R.S. Section 14-3203, because he did not have a Will, his minor children had priority for appointment as Personal Representative. But children under 18 cannot serve in that capacity. So the ex-wife ended up getting appointed as their Conservator, and then was able to become Personal Representative for her ex-husband’s estate in that capacity.

The ex-wife then continued to liquidate assets. The minor children were the beneficiaries of the estate. However, minor children cannot legally have a bank account or own property. So, at the end of the probate, the ex-wife transferred the estate money to bank accounts in the name of the Conservatorship.  The children will get their inheritance when they each turn 18.

It was important for the ex-wife to hire us immediately in order to determine what must be done. We were able to handle the legal issues and resolve everything for the benefit of the children.

Case Involving a Trust In a Divorce Case.

About 15 years ago, attorney Paul Deloughery represented a trust that a wife had set up for her personal assets. In the divorce, the husband claimed that the wife had created the trust fraudulently to hide assets during the marriage. Ultimately, the trust held up. However, it was an unusual situation to be involved as the third attorney in a divorce.

Did the Ex-Spouse Comply With Divorce Decree?

It’s important to determine whether the deceased ex-spouse complied with any officially filed divorce decree or parenting agreement prior to their death. If the ex-spouse failed to comply with any terms stipulated in the decree or agreement, the ex-spouse or the children may have a claim against the deceased spouse’s estate. There are time limits for filing a claim in a probate estate. It’s important to act immediately!

When Are You Entitled To Probate Your Deceased Ex-Spouse’s Estate?

In Arizona, A.R.S. Section 14-3203 provides:

 Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:

1. The person with priority as determined by a probated will including a person nominated by a power conferred in a will.

2. The surviving spouse of the decedent who is a devisee of the decedent.

3. Other devisees of the decedent.

4. The surviving spouse of the decedent.

5. Other heirs of the decedent.

6. If the decedent was a veteran or the spouse or child of a veteran, the department of veterans’ services.

7. Forty-five days after the death of the decedent, any creditor, except a funeral director or funeral establishment owner who has control of the decedent’s remains.

8. The public fiduciary.

A surviving ex-spouse may qualify to become Personal Representative if he or she becomes Conservator for the deceased spouse’s children. The surviving ex-spouse may also qualify as a creditor if the deceased spouse still owes money or other obligations under the divorce decree.

Call Us If You Have a Probate And Family Court Case.

We have handled many mixed probate and court cases. We have the experience to advocate for you and ensure you get treated fairly. Call us today at 602-443-4888. We’re here to help.



Founding attorney Paul Deloughery has been an attorney since 1998, became a Certified Family Wealth Advisor. He is also the founder of Sudden Wealth Protection Law.