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ABATEMENT OF DIVORCE AND ANCILLARY PROCEEDINGS UPON THE DEATH OF A PARTY
1997 National Legal Research Group, Inc.

I. INTRODUCTION

The death of a spouse can be traumatic and painful. Without question, this death will affect the friends and loved ones of the deceased in a manner that is personal to each.

When a spouse dies during the course of a divorce proceeding, these personal problems can be matched by equally difficult legal problems. The traditional rule was that the divorce action abated upon the death of either spouse, but courts are increasingly willing to find exceptions to the traditional rule. It is possible that courts are willing to find exceptions to the tradition rule because the consequences of abatement are substantial. In non-community property states, the surviving spouse's rights are often greater under the law of divorce and equitable distribution than they might be under the law of decedents' estates. The ownership of significant property can therefore depend upon whether the divorce case abates or survives.

This article is intended to aid practitioners in determining whether it is advisable or necessary to continue with the divorce proceeding following the death of a party. The article first discusses the general rule that a divorce proceeding abates following the death of a party and the major exception to this rule that occurs when the other party is responsible for the death. Second, the article discusses when a divorce decree is "final" for the purpose of determining whether the death occurred before the final decree. Third, the article examines the effect of an abated divorce proceeding on such ancillary issues as property division, attorney's fees, and child custody. Finally, the article concludes with a discussion of whether the abatement rule is outdated or continues to perform a needed function in divorce litigation.

II. THE COMMON-LAW RULE: ABATEMENT

It is a long-standing rule of common law that if a party to a divorce proceeding dies prior to a final decree of divorce, the divorce action abates and the decedent's property will be divided in accordance with the law of decedents' estates. Jones v. Jones, 517 So. 2d 606 (Ala. 1987); In re Marriage of Goldberg, 22 Cal. App. 4th 265, 27 Cal. Rptr. 2d 298 (1994); In re Marriage of Connell, 870 P.2d 632 (Colo. Ct. App. 1994); Fernandez v. Fernandez, 648 So. 2d 712 (Fla. 1995); Johnson v. Johnson, 653 N.E.2d 512 (Ind. 1995); Bakker v. Employee Savings Plan of McDonnell Douglas Corp., 919 S.W.2d 16 (Mo. Ct. App. 1996); Jahnke v. Jahnke, 526 N.W.2d 159 (Iowa 1994); Groh v. Groh, 288 N.J. Super. 321, 672 A.2d 262 (Ch. Div. 1995); In re Alfieri, 203 A.D.2d 562, 611 N.Y.S.2d 226 (1994); Matter of S.B., 165 Misc. 2d 632, 629 N.Y.S.2d 1017 (Fam. Ct. 1995); Thorson v. Thorson, 541 N.W.2d 692 (N.D. 1996); Marzette v. Marzette, 882 P.2d 578 (Okla. Ct. App. 1994); Grim v. Grim, 450 Pa. Super. 307, 675 A.2d 1281 (1996); Estate of Pinkerton v. Pinkerton, 435 Pa. Super. 455, 646 A.2d 1184 (1994); Sprouse v. Griffin, 250 Va. 46, 458 S.E.2d 770 (1995); Cox v. Williams, 177 Wis. 2d 433, 502 N.W.2d 128 (1993).

The reason for the common-law rule is simple. A marriage is personal to the man and woman who were married, and the marriage ends upon the death or the divorce of either spouse. If a party dies prior to the date of the divorce, the marriage has been terminated by death, and there is no need to terminate it by divorce:

In re Marriage of Goldberg, 22 Cal. App. 4th 265, 27 Cal. Rptr. 2d 298, 301 (1994) (emphasis in original). Hence, because the death has ended the marriage, there is no reason for a divorce proceeding.

Effect of Abatement

When a divorce case abates, the court loses jurisdiction to award a divorce decree. Since the court cannot grant a decree, it also cannot award relief, which is dependent upon divorce. The most common types of dependent relief are property division, Agliata v. Agliata, 155 Misc. 2d 385, 589 N.Y.S.2d 236 (Sup. Ct. 1992), aff'd, ___ A.D.2d ___, 636 N.Y.S.2d 255 (1995), and spousal support. The law is somewhat less clear, however, as to the effect of abatement on other issues which are not so dependent on the issuance of a divorce decree.

Temporary Restraining Orders. Several recent cases raise the interesting issue of what effect the abatement has upon pending temporary restraining orders. Assume, for instance, that the court issues an order directing the husband not to convey a certain piece of real estate. The husband conveys the real estate in direct defiance of the order, and soon thereafter dies. If the wife attempts to enforce the temporary restraining order in the divorce court, there is substantial authority holding that abatement destroys the court's subject-matter jurisdiction to enforce its prior order. See In re Alfieri, 203 A.D.2d 562, 611 N.Y.S.2d 226 (1994); Socha v. Socha, 183 Wis. 2d 390, 515 N.W.2d 337 (1994).

There is no reason why the defying party's untimely death should excuse all prior violations of the restraining order. Thus, Alfieri and Socha reach an unjust result. The wife might possibly be able to avoid the abatement problem by filing an independent action against the transferee, seeking to impose a constructive trust on the transferred property. This remedy has been applied often in insurance cases when the death occurs after the divorce decree, and one federal case applied it in a predecree setting. See Willoughby v. Willoughby, 758 F. Supp. 646 (D. Kan. 1990). It should be noted that Socha was before the divorce court, which clearly lacked jurisdiction after abatement occurred. Also, Alfieri was an estate proceeding in which fraud was raised as an issue, and the case could therefore be read to reject the above argument. On the other hand, the Alfieri court did not mention constructive trusts, and it did not even cite case law allowing a constructive trust remedy where death occurs after divorce. It is still possible, therefore, that a perceptive court might recognize an equitable remedy in this situation.

A better course of action would be to hold that abatement deprives the court only of jurisdiction to make new orders and not of jurisdiction to enforce or implement prior orders. In Sprouse v. Griffin, 250 Va. 46, 458 S.E.2d 770 (1994), the divorce court ordered certain funds held in an escrow account until further order. The case then abated when one spouse died, and the Virginia Court of Appeals held that the court lacked jurisdiction to deal with the escrow account. On further appeal, the Virginia Supreme Court quite properly reversed. Because the fund was under the control of the court, the court necessarily had jurisdiction to determine ownership of the fund. The supreme court did not allow entry of an equitable distribution order, of course, but it did allow the court to determine who had legal ownership of the fund. Future decisions would do well to adopt this rationale in other abatement situations.

Child Custody. When a party dies prior to a judgment of divorce, the law of decedents' estates and trusts provides an orderly process for dealing with the deceased person's property. There is no such orderly process associated with the deceased person's children. Rather, the issue of the custody of the children remains open, particularly if the child's grandparents, aunts, uncles, or other relatives desire to have court-sanctioned involvement in the child's life. Hence, an important question is whether the death of a party to the divorce proceeding abates the custody matter and, therefore, requires the child's relatives to file a new custody action.

Some courts that have considered the issue have determined that the death of a party in a divorce proceeding abates the custody matter. For example, in Smelscher v. Smelscher, 901 S.W.2d 708 (Tex. Ct. App. 1995), the husband filed an action for divorce and requested that the court name him the sole managing conservator of the parties' two minor children. On the same day, the husband's parents filed a petition to intervene in which they requested that the court name them the sole managing conservators of the children. The court entered a temporary order which named the husband, the wife, and the husband's parents as temporary joint managing conservators of the children. Shortly thereafter, the husband died. Several months later, "the trial court, on [the wife's] motion, dismissed the action in its entirety, concluding that [the husband's] death deprived it of jurisdiction over both the divorce action and the concomitant intervention concerning the children." Id. at 709. The grandparents appealed this decision because they believed that their action survived the death of their son.

The court of appeals reached a clear decision that because the grandparents had not initiated an original custody action, but merely intervened in the parents' divorce action, their action abated along with the divorce action:

Id. at 710. In short, the divorce action abated upon the death of the husband. The grandparents did not file an original action for custody, only an action to intervene. Since the underlying action abated, so did the custody action. Accord Garcia v. Daggett, 742 S.W.2d 808 (Tex. Ct. App. 1987) (death of party abates divorce action; relatives seeking custody of child cannot rely on divorce proceeding as vehicle for custody action).

In addition, there is a general trend by legislatures toward the enactment of statutes which grant grandparents the right to seek visitation. In jurisdictions where the custody matter abates upon the death of a party, a grandparent may not argue that the adoption of the grandparent visitation statutes prevent abatement. Rather, the purpose of the grandparent visitation statutes is to permit grandparents to file visitation actions or intervene in divorce actions; the statutes were not intended to eliminate the abatement rules. This point was noted in Higginbotham v. Higginbotham, 660 So. 2d 990 (Ala. Civ. App. 1995). In Higginbotham, the wife filed an action for divorce and custody. While the action was pending, the husband died. Subsequently, the paternal grandparents attempted to intervene in the divorce action in order to obtain visitation rights. The court dismissed the divorce action and the petition for visitation, and the grandparents appealed.

The court of civil appeals affirmed the trial court's decision, noting that "[t]he husband's death abated the divorce action in this case." Id. at 991. The grandparents pressed the issue, however, arguing that the common-law rule of abatement no longer applied because of the newly enacted grandparent visitation statute. The court of civil appeals disagreed:

Id. at 992. As the court implied, the grandparents have a right to file an action for visitation when a parent dies. Nonetheless, the statute did not eliminate the common-law abatement rule. Accord Bert v. Bert, 154 Mich. App. 208, 397 N.W.2d 270 (1986) (grandparent visitation statute did not authorize intervention by grandparent following death of father).

Other courts have carved out an exception to the abatement rule where a third party has petitioned for visitation or custody. In In re Marriage of Carter, 794 S.W.2d 321 (Mo. Ct. App. 1990), for example, the parties' marriage produced three children before it was dissolved. The dissolution decree placed custody with the maternal grandmother. Subsequently, the father filed a motion to modify the custody decree. During the pendency of this action, the mother died. Rather than concluding that the custody action abated, the trial court awarded custody to the father, and the grandmother appealed.

The Missouri Court of Appeals considered the issue of whether the custody action abated. The court ruled that, generally, a custody action abates upon the death of a party. Id. at 322. Nonetheless, the court noted that "under current practice the father and mother often are not the only parties to the issue of child custody." Id. at 323. Also, the court stated that "the death of a co-party does not cause an action to abate." Id. Therefore, where a grandparent or other person who desires custody or visitation becomes a party to the action, although one party dies the grandparent's visitation or custody action does not abate.

It is fairly clear that the better-reasoned rule is that the action should not abate where a third party has intervened. Requiring the intervening party to file a new action simply promotes the wasteful expenditure of funds on attorney's fees and court costs. When a third party has intervened in a custody action, there is a live dispute between the surviving spouse and the third party. Thus, the custody action is unlike the division of property, which is a dispute between the husband and wife. A custody matter involves not only the husband and wife but also the children and the third party. Rather than wastefully requiring the third party to file a new action and leaving the children in limbo while the third party files a new action and seeks a new hearing, the court should simply conclude that the action did not abate as to issues involving the children and should determine the custody and visitation of the children.

Attorney's Fees. The issue of attorney's fees is often litigated in divorce matters. Frequently, attorneys enter into proceedings knowing that their clients are practically impoverished. For this reason, they hope to obtain awards of attorney's fees from the other parties. As noted throughout this article, however, when a party dies, the divorce suit abates. Death often occurs after attorneys have spent a substantial amount of time working on their clients' cases. Thus, it would be remarkably unfair for the courts to conclude that the attorneys may not recover attorney's fees from the estates of the deceased spouses because of the abatement rules. For this reason, some courts that have considered the issue have determined that a request for attorney's fees does not abate following the death of a party. McDonald v. McDonald, 423 Pa. Super. 422, 621 A.2d 604 (1993). In McDonald, the wife filed for divorce in January 1991. Following a hearing, a court ordered the husband to pay alimony pendente lite and to make other payments. The litigation continued throughout 1991, and in December 1991 the wife filed a petition for interim counsel fees. In May 1992, the court required the husband to pay $8,000 in attorney's fees. In June 1992, the wife died. For this reason, the husband argued that the request for attorney's fees abated along with the divorce matter. The trial court disagreed, and the husband appealed.

The decision that the attorney's fees request had not abated was affirmed. The court reached this conclusion because an award of attorney's fees is based upon the need for the fees and the ability of the other party to pay, and it is not dependent upon whether a divorce is actually granted:

621 A.2d at 605. As the court stated, the need for the attorney's fees is not extinguished by the death of a party and is not dependent upon the granting of a divorce by the court. Thus, attorney's fees may be recovered regardless of whether the divorce proceeding abated upon the death of a party. Accord Drumheller v. Marcello, 351 Pa. Super. 139, 505 A.2d 305 (1986), rev'd on other grounds, 516 Pa. 428, 532 A.2d 807 (1987); Hirsch v. Hirsch, 519 So. 2d 1059 (Fla. Dist. Ct. App. 1988); State ex rel. Paxton v. Porter Superior Court, 467 N.E.2d 1205 (Ind. 1984).

A few courts have held, however, that attorney's fees may only be recovered following the death of a party if the order for attorney's fees was entered prior to the death. E.g., In re Marriage of Lisi, 39 Cal. App. 4th 1573, 46 Cal. Rptr. 2d 623 (1995); In re Marriage of Allaman, 740 P.2d 532 (Colo. Ct. App. 1987). The courts that have held that the attorney's fees are recoverable regardless of the death occurring prior to the date that the trial court entered the award probably have the more reasonable view. The need for the attorney's fees by the one spouse, along with the other spouse's ability to pay, is not diminished merely because the death occurred prior to the order. Furthermore, the estate of the deceased may litigate the reasonableness of the fees as well, as if the spouse had not died. Therefore, there is no reason to refuse to permit the award simply because the death occurred prior to the award.

III. POLICY FACTORS: DOUBTS ABOUT ABATEMENT

The common-law rule is simple to state and easy to apply, and for many years it created little controversy. In recent years, however, the common-law rule has become increasingly disfavored. We will look first at the reasons why the policy behind the law has changed, and then examine the specific modern exceptions to the common-law rule that divorce cases abate upon the death of either party.

Two specific legal changes in the past 25 years have caused courts and commentators to question the fairness of the common-law rule on abatement of divorce cases. First, all non-community property states now provide by statute or case law that courts may divide property upon divorce. Most states have rejected an absolute rule or even a presumption that the division should be equal. Nonetheless, an equal division is probably the most common result, particularly after a long marriage. A corresponding change in social policy has paralleled this change in the law. Not only does the law today provide that an equal division is appropriate after a long marriage, but lawyers and lay persons alike believe that an equal division is generally the most equitable result.

The law of decedents' estates, however, has lagged behind this growing consensus. While property is generally divided equally when a divorce terminates a long marriage, the surviving spouse frequently must share the decedent's property equally with the children when the marriage terminates by death. For this reason, abatement usually results in a significant reduction in the surviving spouse's share of the marital property. There is no policy reason which supports this reduction. In other words, public policy generally favors the equal division which results under divorce law over the unequal division which results under the law of decedents' estates. This public policy opposing abatement has given the courts a strong reason to avoid abatement in order to provide the surviving spouse with a more equitable property award.

Second, in addition to the substantive differences in property division principles between divorce and estates cases, the duration of a trial for divorce cases has also increased significantly. In an earlier age, the divorce court would generally hold a single hearing at which it would resolve all questions of grounds, support, and custody. Today, courts frequently hold separate hearings on each of these subjects. In addition, the development of property division law has created even more delay, as the divisible estate must be discovered by the attorneys and valued by various experts before the court can begin allocating assets to the parties. In short, where a divorce case was once a single thunderclap, it is today more of a drawn-out rumble. The lengthening nature of the divorce process has made it progressively more difficult to determine whether the parties were actually divorced before one party died.

IV. MODERN EXCEPTIONS TO THE COMMON-LAW RULE

The adoption of property division provisions and the lengthening nature of the divorce process have caused courts to create a number of exceptions to the common-law rule that death automatically causes a divorce case to abate. These exceptions are so widespread that in some situations they have essentially swallowed the common-law rule.

Bifurcation

The single most common exception to the common-law rule involves bifurcated divorce proceedings. Recall that under the common-law rule the divorce case abates because death automatically terminates the marriage, making termination by divorce a redundant act. Where the court divorces the parties before one party dies, however, the divorce comes first in time, and it is not redundant. If the drawn-out nature of modern divorce proceedings means that the court still faces ancillary issues, such as property division or support, the uniform modern rule is that those issues should be resolved by the divorce court, with the decedent's estate substituted as a party. In other words, the courts have declined to extend the common-law rule so that death abates an action for property division or support. As long as the divorce action itself survives, death will not cause abatement of ancillary issues. In re Hilke, 4 Cal. 4th 215, 841 P.2d 891, 14 Cal. Rptr. 2d 317 (1992); Angelli v. Sherway, 560 A.2d 1028 (Del. 1989); Estate of Pinkerton v. Pinkerton, 435 Pa. Super. 455, 646 A.2d 1184 (1994).

Indeed, bifurcation will prevent a divorce case from abating even if the case was bifurcated for the specific purpose of avoiding abatement. For example, in Fernandez v. Fernandez, 632 So. 2d 638 (Fla. Dist. Ct. App. 1994), the wife filed a petition for a dissolution of the parties' marriage. Because the wife knew that her death was imminent, she filed a motion to bifurcate the proceedings. In this motion, the wife alleged that she was terminally ill and that her doctors informed her that she would die in a few weeks. The parties stipulated to the motion to bifurcate. The court entered a final judgment of dissolution on January 23, 1992, and the wife died on January 25, 1992. Id. at 639.

In affirming the judgment, the district court of appeal wrote that "[s]ince the trial court had jurisdiction to enter the final judgment of dissolution and did so before Mrs. Fernandez died, by reserving jurisdiction to deal with the remaining issues, it had jurisdiction to enter the subsequent final judgment." Id. at 640. Thus, even if the divorce decree was entered only two days before the death of one of the spouses, abatement of the economic issues is avoided if the court bifurcated the proceedings.

Bifurcation is a common occurrence when one party is in poor health. E.g., Tunderman v. Lee, 585 So. 2d 354 (Fla. Dist. Ct. App. 1991); Fonzi v. Fonzi, 430 Pa. Super. 95, 633 A.2d 634 (1993); Culp v. Culp, 242 N.J. Super. 567, 577 A.2d 872 (Ch. Div. 1990). See generally Brett R. Turner, Equitable Distribution of Property 3.01 (1994). Thus, in order to avoid abatement, a practitioner should not hesitate to request a bifurcation if there is a possibility that his or her client may die prior to the divorce.

If a bifurcation occurs and a spouse dies, an important question is what is the proper division of the parties' property. Some surviving spouses have attempted to argue that they should receive the great majority of the parties' property simply because the deceased spouse has no financial needs. The courts that have recently considered this issue have determined, however, that the reduced needs of the deceased spouse are simply one factor among several for the court to consider. See Fonzi v. Fonzi, 430 Pa. Super. 95, 633 A.2d 634 (1993) (deceased spouse's share of marital property should not be reduced simply because of death); Tucker v. Miller, 113 N.C. App. 785, 440 S.E.2d 315 (1994) (death does not require unequal division; court appeared to indicate that the lack of need of the deceased spouse could justify an unequal division in some cases).

Finality of Divorce

Since bifurcation is generally accepted as a defense to abatement, it is important to determine exactly when the court has validly divorced the parties. The issue raised here is essentially procedural: When is a divorce decree "final" for the purpose of determining abatement? As this section discusses, the answer to this question tends to depend upon the procedural statutes and rules of the jurisdiction in question.

Oral Judgments. Courts are split over the issue of whether a divorce action abates where a party dies following the announcement of a divorce by a court but prior to a written judgment. Some judges believe that the entrance of a written judgment is merely a ministerial act. Therefore, it is proper to conclude that the action does not abate if a party dies after only an oral judgment of divorce. A good example is provided by Brown v. Brown, 208 A.D.2d 485, 617 N.Y.S.2d 48 (1994). In Brown, the parties entered into a divorce action in February 1985. In March 1986, the trial court "granted the parties a divorce and directed the submission of a proposed judgment." 617 N.Y.S.2d at 48. On April 28, 1986, the husband died. Approximately two months later, the proposed judgment was submitted to the court by the plaintiff. The judge signed the proposed judgment on June 27, 1986. Several years later, the wife moved to vacate the judgment on the grounds that the divorce matter abated upon the husband's death. The wife noted that the decree was not actually entered until after the death of the husband. The Appellate Division, Second Department of New York held that because the entrance of the judgment was a mere "ministerial act" the divorce action did not abate upon the death of the husband. Accord Agliata v. Agliata, 155 Misc. 2d 385, 589 N.Y.S.2d 236 (Sup. Ct. 1992), aff'd, ___ A.D.2d ___, 636 N.Y.S.2d 255 (1995) (right to equitable distribution in matrimonial matter vests upon determination of court that judgment of divorce is to be granted, and actual entry of written judgment pursuant to such determination, which is purely a ministerial act, is not essential to the vesting of that right).

Similarly, in White v. Smith, 645 So. 2d 875 (Miss. 1994), the wife filed an action for divorce. The wife also requested a division of certain portions of the parties' property and an award of attorney's fees. On November 2, 1992, prior to the hearing, the parties offered a handwritten "Consent to Divorce." Id. at 876. Then the court conducted a hearing concerning the division of the parties' property. Following the testimony, the court orally ordered a division of the parties' property and granted a divorce on the grounds of irreconcilable differences. However, the court did not immediately enter a written decree of divorce. On November 10, 1992, the husband died. Three days later, the consent to divorce was formally filed in the chancery court. On December 4, 1992, the husband's brother sought to be substituted as a party, but the wife requested a dismissal of the complaint for divorce on the grounds of abatement. The chancery court agreed to enter a judgment of divorce between the wife and husband nunc pro tunc November 2, 1992. The wife appealed.

The Supreme Court of Mississippi held that the trial court correctly entered a decree of divorce nunc pro tunc November 2, 1992 rather than dismissing the divorce complaint on the grounds that the husband died prior to the written judgment. The court recognized that the general rule was that the "death of a party in a divorce action prior to the final decree ends the marriage of the parties and cancels the bill of complaint for divorce." Id. at 880. Nonetheless, the court held that the trial court properly refused to hold that the proceedings had abated because all issues had been previously litigated:

Id. at 881. Thus, if the grounds for the divorce were established prior to the date of the death, the court was empowered to enter a decree of divorce which related back to a date prior to the death of the spouse. The court clearly indicated, however, that an oral decision that a divorce should be granted does not automatically entitle the survivor to a judgment nunc pro tunc. Instead, the court held that a party is only entitled to such a judgment if there had already been a formal adjudication of the divorce. See also Coulter v. Coulter, 131 N.H. 98, 550 A.2d 112 (1988) (judgment nunc pro tunc may be entered, in furtherance of justice, where judgment has already been rendered, and requested entry of judgment is mere ministerial act); Pettygrove v. Pettygrove, 132 Wis. 2d 456, 393 N.W.2d 116 (Ct. App. 1986) (if court orally renders a divorce judgment, but one party dies before the judgment is entered, the decree is valid).

As noted above, most courts are flexible concerning the issue of abatement following an oral judgment that a divorce should be granted. If the issue has already been litigated, justice requires that the court enter a judgment of divorce that relates back to a date prior to the date of the death of the party. Some of the courts that have considered the issue, however, have not been so flexible. Rather, these courts have held that a divorce action abates if a party dies prior to a final, written judgment of divorce even if there has been an oral pronouncement and there are no remaining issues. A good example of this extreme view was provided in the case of Bayne v. Bass, 302 S.C. 208, 394 S.E.2d 726 (Ct. App. 1990). In Bayne, the wife filed an action for divorce, and the husband defaulted. "At the end of the hearing the trial judge announced from the bench that the Wife had proved her case and that a divorce would be granted." 394 S.E.2d at 726. Prior to the date that a formal decree was signed by the judge, the wife committed suicide. Two days later, the judge signed the final decree of divorce. Following a hearing on a motion to vacate submitted by the husband, the trial court vacated its order. The wife's personal representative appealed.

Noting that Rule 26 of the South Carolina Rules of Family Court "requires an order or judgment to set forth specific findings of fact and conclusions of law," id. at 727, the Court of Appeals of South Carolina held that the trial court correctly vacated the order. The court noted that a judgment is simply not final until it has been entered in writing by the judge:

Id. (quoting Case v. Case, 243 S.C. 447, 134 S.E.2d 394, 396 (1964)). Hence, the rule in South Carolina is that, even after a court has orally granted a divorce, if a party dies before a written judgment, the case abates. See also Linzenni v. Hoffman, 13 Fam. L. Rep. (BNA) 1158 (Mo. Jan. 21, 1997) (because, at the time of the husband's death, judge's file contained a written document denominated as a "judgment" dissolving the marriage, the action did not abate, even though the judgment did not meet the procedural requirements for a final judgment in Missouri).

Likewise, in Steele v. Steele, 757 S.W.2d 340 (Tenn. Ct. App. 1988), the divorce matter was tried on July 3 and July 9, 1987. On August 28, 1987, the trial court wrote a letter to the husband. In this letter, the court wrote that the husband was entitled to a divorce. The court also divided the parties' property in this letter and awarded attorney's fees. On September 17, 1987, prior to the entry of the judgment of divorce, the husband died. Nonetheless, rather than concluding that the action abated, the trial court allowed the executor of the husband's estate to be substituted for the husband. The wife appealed, but the court of appeals noted that under the Tennessee Rules of Civil Procedure "no judgment shall be effective for any purpose until the entry of same." Id. at 344. Thus, even though the issue had been fully tried, and the court had reached a conclusion that the husband was entitled to a divorce, the case abated because the husband died prior to the entry of a final, written judgment.

Similarly, in Matter of Marriage of Wilson, 13 Kan. App. 2d 291, 768 P.2d 835 (1989), the wife filed a divorce petition in June 1987, and the husband counterclaimed for divorce. On November 5, 1987, the court conducted a hearing on the issue of the divorce. At the end of the hearing, the court ordered the wife's attorney to prepare the decree. Twenty-nine days later, the husband died at 12:16 a.m. At 9:00 a.m. on the same day, the "signed journal entry and decree of divorce was delivered to the clerk of the court for filing." 768 P.2d at 836. Subsequently, the wife moved to dismiss the decree of divorce. Believing that the case had abated, the trial court set aside its decree, and the husband's estate appealed.

The Court of Appeals of Kansas agreed that the case abated even though the trial court tried the divorce prior to the husband's death. As in Bayne and Steele, the court held that the technical rule that a decree is not final until signed and entered by the judge controls the abatement issue:

Id. Hence, since the Rule of Civil Procedure stated that the decree was final only upon entry, the case abated even though the husband died after the oral decision. See also Woods v. Woods, 161 Vt. 627, 641 A.2d 363 (1994) (if a party dies after a judgment of divorce, but prior to the end of the nisi period, the death abates the action).

Courts that conclude that the case has abated even after a full hearing and an oral decision that a divorce should be granted permit form to win over substance. It is true, as some courts note, that a decision is not final until it has been formally written, signed, and entered. However, if a case has been tried, and the judge has already decided to enter the divorce, then, as the court noted in Brown v. Brown, 208 A.D.2d 485, 617 N.Y.S.2d 48 (1994), the entry of the judgment is merely a ministerial act. In other words, the entire case has abated simply because the court's bureaucracy has not worked fast enough. Therefore, the courts that have concluded that a case does not abate if the party dies after the court has orally stated that a divorce is warranted have assumed a more reasonable posture.

Appeal. It is well established that if a party dies after a divorce decree but prior to the date of an appeal the case does not abate. Rather, if the appeal involved property issues, the appellate court has jurisdiction to decide the appeal. If not, the appellate court should dismiss the appeal as moot. The court reached this conclusion in Turner v. Ward, 910 S.W.2d 500 (Tex. Ct. App. 1994). In Turner, the parties separated after a four-month marriage. The husband filed an action for divorce, and the court held a hearing on April 2, 1993. On that same day, the court signed and entered the decree of divorce. Id.at 501. Sixteen days after the decree, the husband was shot to death. Subsequently, the husband's estate filed a motion to dismiss the divorce proceedings in the trial court. Ultimately, the trial court held that the judgment of divorce was valid, and the husband's estate appealed.

On appeal, the decision was affirmed. The court of appeals acknowledged, that as a general rule, where there are no property issues, "[a]n appeal from a divorce decree becomes moot when a party to the divorce dies during the pendency of the appeal." Id. at 503. This rule is reasonable since, if there are no other issues, and a party dies, the marriage has ended, regardless of whether either party was ever entitled to a divorce. Normally, however, the parties' property is an issue in the case. Hence, "the court of appeals has jurisdiction of the appeal after the death of a party if the divorce decree substantially affects the parties' property rights." Id. at 504.

Likewise, in In re Marriage of Butler, 243 Mont. 521, 795 P.2d 467 (1990), the parties accumulated a substantial amount of property during their 22-year marriage. In 1985, the husband filed for divorce but was diagnosed with terminal cancer shortly thereafter. In December 1986, the court dissolved the parties' marriage. In February 1987, the court divided the parties' estate, but the wife filed a motion to alter or amend the judgment. Prior to the hearing on the motion, the husband died. The trial court permitted the case to continue in spite of the husband's death, and the wife's motion was denied. On appeal, the court's valuation of the parties' property was reversed. After a subsequent appeal on remand, the Supreme Court of Montana held that "[w]here property interests are involved, an appeal in a divorce case does not abate upon the death of a party pending its determination." 795 P.2d at 469.

Wrongdoing

As noted above, where the case is not bifurcated and one spouse dies before the decree is entered, the courts generally respect the common-law rule and hold that the divorce case abates, even though the surviving spouse is financially injured. It is particularly difficult for the courts to tolerate this injury, however, when it was deliberately inflicted by the decedent. Further, even the common law recognizes that it is unjust for a party to profit if he or she caused the death of the other spouse. Perry v. Strawbridge, 209 Mo. 621, 108 S.W.2d 641 (1908). Most divorce statutes are too narrow, however, to contain "slayer" provisions which would prevent spouses from profiting by killing the other spouses prior to divorce. For this reason, rather than concluding that the divorce statutes contain implied exceptions to the abatement rule, some courts have broadly interpreted the slayer statutes that are normally applicable to probate proceedings and have held that parties who kill spouses are estopped from preventing equitable distribution of property under the states' equitable distribution statutes.

For example, in Drumheller v. Marcello, 516 Pa. 428, 532 A.2d 807 (1987), the wife filed an action for divorce. During the pendency of the divorce action, the trial court gave the wife exclusive use of the parties' condominium. "Shortly after [the wife] took possession of the condominium, she was shot and killed by her husband, who had been waiting for her inside the condominium." 532 A.2d at 808. Then the husband killed himself. The representative of the husband's estate filed a motion to dismiss the divorce action since the parties had died. The trial court granted the motion, and the wife's estate appealed. The superior court affirmed the decision, and the wife's estate again appealed to the Supreme Court of Pennsylvania.

On appeal, the decision by the trial court that the case abated was reversed. In reaching this conclusion, the court noted that the Pennsylvania Slayer Act, 20 Pa. Const. Stat. 8802 (1972), "enunciates not only sound law, but wise public policy" by preventing a party from profiting by killing his or her spouse. 532 A.2d at 809 (emphasis in original). For this reason, the court decided that the equitable distribution of the parties' marital estate would occur in spite of the fact that both parties died prior to the divorce decree. Specifically, the court held "that under circumstances where a spouse slays another spouse prior to the entry of a decree in divorce, the slayer is estopped from terminating the equitable distribution action upon the legal theory that the divorce abated." Id. at 812. Likewise, in Howsden v. Rolenc, 219 Neb. 16, 360 N.W.2d 680 (1985), the wife filed for divorce in 1981. Shortly thereafter, the court entered an order of dissolution without dividing the parties' property or entering an order of support. Because the wife had lost her right to a division of the property and her right to support as a result of the decree, the wife filed a motion to vacate the decree of dissolution on the grounds of fraud. Ultimately, however, the wife desired that the court dissolve the marriage, divide the parties' property, and award her support. While this motion was pending, the husband murdered the wife. The husband argued that the wife's motion to vacate the divorce had abated because of her death. The trial court agreed with the husband, and the wife's estate appealed.

Citing the Nebraska slayer statute, the Supreme Court of Nebraska overruled the decision by the trial court that the wife's petition to vacate the decree had abated. As the court wrote, "[t]here is strong public policy against allowing a person who commits a homicide to benefit in any way from the death of the victim." 360 N.W.2d at 681. Hence, regardless of whether the legislature intended that courts interpret the slayer statute to allow the equitable distribution of property, because of the public policy against allowing spouses to profit by killing their partners, it was improper for the trial court to refuse to allow an equitable distribution of the parties' property. See alsoMyers v. Myers, 397 Pa. Super. 395, 580 A.2d 384 (1990) (absent evidence of wrongdoing by surviving spouse in connection with death, divorce abates upon death of a spouse); Jacobson v. Jacobson, 146 N.J. Super. 491, 370 A.2d 65 (Ch. Div. 1976) (where the husband killed his wife, the divorce action did not abate as to the issue of equitable distribution); Matter of Estate of Schwartz, 133 Misc. 2d 1064, 509 N.Y.S.2d 729 (Sur. Ct. 1986), rev'd on other grounds, Sperber v. Schwartz, 139 A.D.2d 640, 527 N.Y.S.2d 279 (1988) (where party to a pending divorce proceeding intentionally or recklessly causes the death of a spouse with conscious awareness of possible consequences, fiduciary of estate is entitled to equitable distribution).

Although the weight of the authority favors the rule that a party cannot prevent an equitable distribution of property by killing his or her spouse, the slayer exception is not universally accepted. In Bakker v. Employee Savings Plan of McDonnell Douglas Corp., 919 S.W.2d 16 (Mo. Ct. App. 1996), the Missouri Court of Appeals presented a sound but technical argument that the case should abate even if a party has killed his or her spouse. In Bakker, the wife filed an action for divorce against the husband. While the action was pending, the "husband intentionally shot and killed wife without legal justification at the St. Louis County Courthouse." Id. at 17. At the time of the killing, the court had not divorced the parties or even made a finding that the marriage was irretrievably broken. Shortly thereafter, rather than concluding that the divorce action abated, the trial court relied upon the common-law principle that a killer should not profit from his wrong and permitted the wife's daughter to intervene and request an equitable distribution on the wife's behalf. A second trial judge actually divided the parties' property and entered four qualified domestic relations orders (QDROs). Later, however, when the wife's estate attempted to execute upon the QDROs through a garnishment action, a third judge held that there was no jurisdiction to enter the QDROs after the wife died. The wife's estate appealed.

The Missouri Court of Appeals affirmed the trial court's decision that it had no jurisdiction to enter the QDROs. In reaching this conclusion, the court of appeals recognized the principle that a party should not profit from his or her wrongful killing of the other party. The court believed, however, that this principle did not create jurisdiction to divide the parties' property and that any court that concluded otherwise was wrong:

Id. at 18. In other words, the principle that a wrongdoer should not profit from his actions is simply a principle, not an independent basis for jurisdiction.

Similarly, the court in Segars v. Brooks, 248 Ga. 427, 284 S.E.2d 13 (1981), held that there were no grounds for a conclusion that an equitable distribution survives the death of a party simply because the survivor caused the death. In Segars, the husband shot the wife six days after he answered the complaint for divorce. The wife's administratrix filed a motion in which it requested an equitable distribution of property. The trial court held that the action abated, and the administratrix appealed.

The Supreme Court of Georgia affirmed the decision of the trial court. In entering this decision, the court believed that the "bad facts" of the case should not govern the decision. Rather, "[c]riminal homicide is punishable by law, and the sanctions of our criminal laws are adequate to deter the killing of spouses pending divorce proceedings." 284 S.E.2d at 15. Implicitly, the court concluded that a death ends the court's jurisdiction, and this rule does not change simply because the spouse was killed by the other spouse. See also Bayne v. Bass, 302 S.C. 208, 394 S.E.2d 726 (1990) (fact that wife committed suicide did not prevent abatement).

Although the decisions that the case abates in spite of the killing appear to be unfair to the deceased, they do have a sound basis. A court's jurisdiction over a divorce matter ends upon the death of a party. The common-law rule that a slayer should not profit from a killing as well as the various slayer statutes do not purport to create jurisdiction where it does not otherwise exist.

Nonetheless, the courts that have held that the slayer statutes or common-law slayer rules are inapplicable completely ignore the intent of the legislatures and courts which have adopted the rules. The intent of the statutes or rules is to prevent a party from profiting from a death. Thus, the courts that have held that the case does not abate are effectuating the intent of the courts and legislatures; the courts that hold otherwise are allowing a technicality to stand in the way of justice and the intent of the drafters. For this reason, courts should not fear that their decisions would be overturned by legislatures and simply refuse to hold that cases abate where killers would profit through abatement.

V. CONCLUSION

The doctrine of abatement serves a simple purpose: It serves as the line of demarkation between the law of divorce and the law of decedents' estates. As long as non-community property jurisdictions continue to distinguish between the rights of the spouses in these two settings, courts will continue to face the need to draw a line between the types of fact situations to which the two remedies apply. The doctrine of abatement is therefore likely to remain intact for the foreseeable future.

To the extent that the doctrine of abatement has posed problems in recent years, the problems are not inherent in the doctrine of abatement itself. Instead, the underlying problem is that the law of decedents' estates provides in most instances a smaller award to the surviving spouse than the law of property division upon divorce. Because the law of property division is more in tune with modern social policy, courts have felt the need to stretch the law of abatement so that the preferred remedy, equitable distribution, can be used as often as possible.

This statement of the abatement issue suggests its own solution. If the law of decedents' estates is revised so that it is more consistent with modern social policy, courts will no longer feel the need to stretch the doctrine of abatement. In particular, the surviving spouse should receive at least a presumptive 50% share in every circumstance, regardless of how many children are present. Such a revision would admittedly require legislative action, as it is beyond the authority of any court to enact. The practical result of such a revision, however, would be a substantial reduction in the number of difficult abatement issues faced by the courts.

Unless and until the law of decedents' estates changes, the courts are likely to continue to face growing numbers of abatement problems. The modern trend is clearly to avoid a finding of abatement wherever possible, on grounds that the law of equitable distribution is a preferred remedy over the right to dissent from a will under the law of decedents' estates. As the concept of an equal division of marital property continues to gain public acceptance, courts are likely to continue stretching the law wherever possible to avoid a finding of abatement.

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