What happens to a divorce proceeding when one spouse dies while the case
is pending—but before a final decree of dissolution of marriage
is entered by the court?
In many types of cases the law provides that the case “survives”
the death of a party to the case. For instance, if a person were injured
in a car accident and filed a claim for compensation for those injuries,
such claim would be able to continue after the death (through the probate
representative of the deceased). Similarly, if a breach of contract case
were brought in court, and one party to the contract case died, the case
could continue through the deceased’s estate representative to a
One would think, therefore, that if a marital dissolution proceeding is
filed in court and the parties had signed a Separation Agreement which
fully resolved all matters relating to property division, custody of the
couple’s minor children and support—and submitted the Agreement
to the court for entry as a court order—the same principles would
apply to permit the court to enter the signed Agreement as a court order
since both parties had agreed to it. One would think, as a matter of common
sense, that the Agreement between the parties evidenced the parties’
clear intent to dissolve the marriage. The administrative delay between
the filing of the parties’ request for entry of the final decree—and
the court actually signing it—should not work to defeat the clearly
expressed intent of the parties to dissolve the marriage.
But that is not what the law says. In Colorado, a pending dissolution of
marriage case filed in court will not survive after one spouse dies. The
general rule of law is that a divorce action immediately ends upon the
death of a party. The reasoning is that the object sought to be achieved
by a divorce decree was accomplished by the death of one of the parties
and, thus, there is no status of “marriage” upon which a final
decree of divorce may operate.
Under Colorado law, judicial action is necessary to dissolve a marriage—even
when the parties have amicably resolved all issues pertaining to the dissolution.
Furthermore, if there are minor children involved in a dissolution action,
the court’s approval of a separation agreement between the parties
would not be automatically entered as the court’s order of dissolution
since the court always retains jurisdiction to review and revise such
an agreement. Finally, under Colorado law, a decree of dissolution or
legal separation is never final until it has been signed and entered in
the court register of action.
The inescapable conclusion is that, under Colorado’s statutory framework,
if either spouse dies prior to the entry of a valid divorce decree, the
marriage is terminated as a matter of law and the court is divested of
jurisdiction to proceed any further in the dissolution case.
Although the law is clear that a divorce action ends when a spouse dies,
where there are minor children involved, issues of child custody and parenting
may still need to be addressed by the court if the surviving spouse is
not able, or willing, to have custody or to adequately parent the children.
Such cases present combined issues of family law and probate law as well
as, potentially, child dependency and neglect matters. Concerned family
members should consult with experienced family law and probate attorneys
such as those at Clawson & Clawson LLP. A short consultation can inform
interested parties of the rights surrounding the minor children and their
care and support in the event of the death of a parent during a divorce