What Happens to an Estate of a Person Who Died During a Divorce in New York?

When a person dies during a divorce in New York, many questions arise in regard to their estate. Does the estate go to the wife or husband whom they were in the process of divorcing? Is the surviving spouse treated as if the divorce has already happened? Does the divorce process just continue?

In a New York estate, being in the process of a divorce in and of itself does not disqualify the surviving spouse of the person who died from inheriting the estate. However, there are two ways in which divorcing spouses are cut off from inheritance. The first way is retroactive divorce judgment. The second one is abandonment.

Retroactive Divorce Judgment

In many divorces where one of the spouses dies before the divorce is completed, the court will issue a nunc pro tunc retroactive Judgment. This is especially true if a divorce was underway and about to be concluded. The parties’ settlement agreement or even a draft settlement agreement can be a factor in deciding the terms of the divorce judgment.

If a retroactive divorce judgment is granted by the divorce court, the probate court considers the parties to be divorced, cutting off the surviving one from inheriting from the one they were in a divorce proceeding with.


If a retroactive divorce judgment is not granted, the survivor can be cut off from the divorcing spouse’s inheritance by a claim of abandonment. Being in a process of a divorce can be an important factor in proving an abandonment claim, which if successful would preclude a surviving spouse from inheriting.

In the Surrogate’s Court, the surviving spouse is assumed to be entitled to what they would have gotten even if they are in the process of being divorced, unless someone files a claim that the surviving spouse abandoned the deceased spouse.

New York law about abandonment is very fact-specific, and has to be addressed on a case-to-case basis. Just filing for divorce in and of itself is not abandonment – it can be interpreted as an attempt to dissolve a marriage in an orderly fashion.

Certainly living apart while the divorce was filed or even after the divorce was filed helps to prove an abandonment claim. But it’s also not the final say. If the decedent was the one who left the surviving spouse, then an abandonment claim would not go through and the surviving spouse would receive the part of the estate they’re entitled to.

Even leaving a spouse is not always abandonment. For example, if they were the one who threw the surviving spouse out. Leaving with mutual consent is also arguably not abandonment. The best case of abandonment would be when the decedent did not want the surviving spouse to leave but the surviving spouse left anyway. This kind of case can be difficult to prove because one of the participants is no longer there to testify, and testifying about their testimony is precluded by the hearsay rules and the dead-man statute.

If you would like to learn more about this topic, read our related articles:

The article on Abandonment.

Does a New York estate have to pay child support?

Is there a time limit for filing for an Elective Share?

How is the estate divided when someone died without a will?

Call the Law Offices of Albert Goodwin at (212) 233-1233, New York estate, guardianship, wills, trust, medicaid and probate lawyer, and make an appointment to discuss if you find yourself on either side in an estate where a person died in New York during a divorce.

Attorney Albert Goodwin

Law Offices of
Albert Goodwin, PLLC
31 W 34 Str, Suite 7058
New York, NY 10001
[email protected]