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What happens if a spouse dies while a divorce action is pending?

What happens if a spouse dies while a divorce action is pending?
Axelrod & Associates, P.A.

What happens if a spouse dies while their divorce action is pending?

Although the divorce action ends, any related claims that involve vested interests like requests for the equitable division of marital property will remain within the family court’s exclusive jurisdiction, and it is necessary for the family court to resolve those issues before the probate court can administer the deceased person’s estate.

Seels v. Smalls: Equitable Apportionment of Marital Property Survives Death

In Seels v. Smalls, decided on August 3, 2022, the SC Supreme Court held that Wife’s claim for equitable apportionment (division of marital property) did not end upon her death and that it was appropriate for the family court to allow Wife’s personal representative to substitute as the plaintiff in the case and for the family court to proceed with the division of marital property.

Husband claimed that the apportionment should be done in the probate court since Wife passed away and that the family court no longer had jurisdiction to decide the issues, but the SC Court of Appeals and the SC Supreme Court disagreed, finding that the family court had exclusive jurisdiction to apportion the marital property even though the divorce claim was extinguished upon Wife’s death.

Division of Marital Property is in the Jurisdiction of the Family Court

SC Code § 63-3-530 says that the family court has exclusive jurisdiction over “domestic matters,” which includes actions for the equitable apportionment of marital property:

(A) The family court has exclusive jurisdiction:

. . . .

(2) to hear and determine actions for divorce a vinculo matrimonii, separate support and maintenance, legal separation, and in other marital litigation between the parties, and for settlement of all legal and equitable rights of the parties in the actions in and to the real and personal property of the marriage and attorney’s fees, if requested by either party in the pleadings[.]

The equitable apportionment of the “real and personal property of the marriage” refers to “marital property,” which is defined in SC Code § 20-3-630 as “all real and personal property [that] has been acquired by the parties during the marriage and [that] is owned as of the date of filing or commencement of marital litigation as provided in Section 20-3-620 regardless of how legal title is held.”

When Wife filed her divorce action asking for division of the marital property, this was the “commencement of marital litigation.” At the moment the marital litigation was filed, each spouse had a “vested interest” in the marital property as provided by SC Code § 20-3-610:

During the marriage a spouse shall acquire, based upon the factors set out in Section 20-3-620, a vested special equity and ownership right in the marital property as defined in Section 20-3-630, which equity and ownership right are subject to apportionment between the spouses by the family courts of this State at the time marital litigation is filed or commenced as provided in Section 20-3-620.

While purely personal actions, like the pending action for divorce, ended upon Wife’s death, pending actions regarding the vested interest of a spouse in marital property do not end and remain within the family court’s exclusive jurisdiction.

Determination of Heirs and Division of Estates is in the Jurisdiction of the Probate Court

Husband appealed because he wanted the probate court to handle the distribution of property instead of the family court.

Although the probate court has jurisdiction over the administration of estates, it does not have jurisdiction over the equitable division of marital property, and the probate court cannot distribute Wife’s estate until the family court has apportioned the marital property “because the extent of the property owned by the decedent is unknown.”

For example, if a party to a pending divorce dies intestate, the domestic relations court must determine the extent of the decedent’s separate property and share of the community property in order to determine what property will pass by intestacy. If a party to a pending divorce dies with a valid will, the domestic relations proceeding must first determine the property over which the decedent can exercise the power of testamentary disposition. If a decedent’s will has a residuary clause or pour-over provision, the domestic relations proceeding must determine what property will pass via that residuary clause or pour-over provision. The domestic relations proceedings must therefore be completed first.

Furthermore, although the SC legislature provided a list of factors for the family court to use when apportioning marital property, there is no procedure in place for the probate court to undertake a similar analysis:

In addition to the lack of any overt intent by the General Assembly to divest the family court of jurisdiction in these circumstances, we note the General Assembly has not enacted any comparable statutory procedures for the probate court to follow in identifying and equitably apportioning marital property, as it has for the family court. Cf. S.C. Code Ann. § 20-3-620(B) (2014) (enumerating an extensive list of fifteen factors for the family court to weigh in making the apportionment). Thus, the family court is in the best position to decide issues affecting marital property in light of the long-standing, detailed statutory procedures governing the family court’s exercise of exclusive jurisdiction over this subject matter.

If a party dies while divorce proceedings are pending, the divorce action is extinguished, but any related claims regarding vested interests of the parties like the distribution of marital property remain within the exclusive jurisdiction of the family court.


If you are considering separation or divorce, talk to your Myrtle Beach divorce attorney on the Axelrod team as soon as possible. Whether you have a simple, no-fault divorce with no contested issues or a complex separation involving children, assets, and multiple businesses, we will help you to protect your assets, your children, and your rights during the divorce process.

Call now at 843-916-9300 or get in touch through our website to talk with a SC divorce attorney today.

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