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DEATH BEFORE DIVORCE AND EQUITABLE DISTRIBUTION
1994 National Legal Research Group, Inc.

ARKANSAS: Hamilton v. Hamilton, ___ Ark. ___, 879 S.W.2d 416 (1994).

Since pending divorce action terminated because of husband's death, wife had right to elective share of husband's estate; fact that wife would receive more property by electing against will than she would have received in divorce action did not mean that election statute violated equal protection.

VIRGINIA: Griffin v. Sprouse, ___ Va. App. ___, 448 S.E.2d 152 (1994).

After husband's death before entry of divorce, trial court in pending divorce action lacked jurisdiction to determine distribution of marital funds that parties' attorneys held in court-ordered escrow.


In both of these cases, the husband died during divorce proceedings but before entry of a divorce. In both cases, the death led to a dispute between the wife and the husband's children over the effect of the death on the undistributed property. Elective share. In Hamilton v. Hamilton, the daughters of the testator argued unsuccessfully that marital property laws should apply despite the husband's death during the divorce proceedings. They challenged the right of his surviving spouse to take against his will under the Arkansas elective share statute. If the divorce proceedings had been completed, they pointed out, the wife would have received much less than her elective share in probate proceedings, because as a subsequent wife, her contribution to the property in the husband's estate was minimal. They asserted that the elective share statute violated equal protection because for no rational reason it treated surviving spouses differently than divorcing spouses. The concept of an elective share statute for the economic protection of surviving spouses is outmoded, they contended.

The Arkansas Supreme Court upheld the constitutionality of the elective share statute. The policy consideration behind the statutory division of property as part of divorce is not the same as the policy consideration giving rise to the elective share statute, the court said. The former is designed to distribute property equitably upon divorce, while the latter is designed to prevent economic injustices when a marriage lasts until the death of a spouse. The legislature's distinct treatment of the two classes is therefore rational and passes muster under the equal protection clause, the court concluded. See also In the Matter of Patrick , 303 S.C. 559, 402 S.E.2d 664 (1991) (providing for surviving spouses is a legitimate legislative purpose and salvages the elective share statute from an equal protection attack).

The fact that the parties were estranged at the time of the husband's death did not alter the wife's right to elect against his will, the court also decided. The husband's death had the effect of terminating the divorce action, so the parties were still married when he died. His death made it appropriate for the wife to elect against his will, the pending divorce action notwithstanding. See also In the Matter of Kueber , 390 N.W.2d 22 (Minn. Ct. App. 1986) (estranged wife who was never divorced from testator was entitled to her elective share).

Jurisdiction over property in court-ordered escrow. During the divorce proceedings in Griffin v. Sprouse, the parties agreed to sell the marital residence, which they owned as tenants by the entireties. Following the sale, however, they were unable to agree on how to distribute the proceeds. Hence, the trial court ordered that the sale proceeds be held in escrow by the parties' attorneys. The husband died intestate before a hearing could be held.

Subsequently, the wife moved for summary judgment contending that the escrowed funds were now her property. The trial court held that title to the funds passed to the wife because the home had been held by the parties as tenants by the entireties, so that the escrowed funds should be disbursed to the wife. The husband's daughter appealed, claiming that the trial court did not have jurisdiction to determine the rights to the escrowed funds.

The Virginia Court of Appeals held that the trial court did not have jurisdiction to determine entitlement to the escrowed funds, because its authority to proceed with the divorce case abated when the husband died. The trial court had concluded that it retained in rem jurisdiction over an escrow fund specifically created by its own valid order, but the appeals court disagreed. In view of the husband's death, the trial court's jurisdiction was limited to transferring the funds to a court with jurisdiction. Jurisdiction in divorce cases is wholly statutory, and the order that the funds be paid to the wife was a determination of property rights beyond the authority provided by statute, the court said.

The court observed that its decision was supported by cases from other states with similar statutes. It cited Geraghty v. Geraghty , 411 Pa. Super. 53, 600 A.2d 1261, 1264 (1991) (holding that abatement of divorce action divested the court of jurisdiction to alter beneficiary designation on life insurance policies after husband's death), appeal denied , 532 Pa. 656, 615 A.2d 1312 (1992), and Briece v. Briece , 703 F.2d 1045, 1046-47 (8th Cir. 1983) (holding, under Illinois law, that court was without jurisdiction to enforce previous order directing husband to reinstate wife as beneficiary on his life insurance policy where husband died before final decree was entered and without notice of reinstatement order).

Virginia has no statute providing for survival or revival of a divorce or equitable distribution action following the death of one of the parties, the court pointed out. In the absence of such a statute, jurisdiction to resolve disputes over property ownership lies with the probate court, the court said, citing Simpson v. Simpson , 473 So. 2d 299 (Fla. DCA 1985) (holding that probate court had exclusive jurisdiction to dispose of property owned by party who died prior to entry of divorce decree); Davis v. Rahkonen , 112 Wis. 2d 385, 332 N.W.2d 855, 856-57 (Ct. App. 1983) (holding that although divorce action abated on death of party, court retained limited jurisdiction to award attorney's fees because statute so provided); and Lynn Z. Gold-Bikin, "Bifurcation: Death After Divorce and Before Distribution," Contemporary Matrimonial Law Issues: A Guide to Divorce Economics and Practice 622, 623 (Henry H. Foster Jr. & Ronald L. Brown eds. 1985) ("When a party to a divorce proceeding dies before the entry of a final [decree], the action generally abates and . . . the probate court has jurisdiction over the deceased's property").

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