If you find yourself in a situation where your soon to be ex-spouse becomes incapacitated or passes away, it's important to know how it will impact your divorce.
Death of a Spouse
In the event of a spouse’s death after the filing of a divorce proceeding, but before the entry of a final judgement, an attorney or party to the case will file a suggestion of death pursuant to the Texas Rules of Civil Procedure. This suggestion notifies all parties to the suit and will essentially vacate or terminate the divorce proceeding.
From that point forward, all issues concerning the distribution of the community estate and the validity of any pre or post marital agreements will be heard in the Probate Courts, not the Family Law Courts.
Retirement benefits, including 401k plans and pension benefits, are typically governed by federal law. Therefore, the plan terms and beneficiary designations will govern in the event of the participants death, and the state courts will not be able to alter those terms.
Incapacity of a Spouse
If your spouse becomes incapacitated during the divorce proceeding, a guardian may need to be appointed for them. What the guardian will have the power to do will depend upon the nature and severity of your spouse’s incapacity. If there is a complete incapacity, the guardian may be able to negotiate settlements or attend a final trial on behalf of the incapacitated spouse. The guardian is usually a person appointed by the court; however, the court may also consider a relative or close friend.
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