As a divorce attorney, I frequently see weird and disturbing things. The idea of commencing a divorce case against a terminally ill spouse certainly fits within both the weird and disturbing categories. Thankfully, I have yet to actually see that happen. But I have known it to happen the other way – a terminally ill spouse commencing a divorce against his or spouse.
What would cause a terminally ill person to start a divorce case? In most cases, probably the same reasons that motivate anyone to get divorced. People grow apart. They fall out of love. Or one partner may be struggling with drugs or alcohol. But, a dying spouse could also have a more pressing, time sensitive reason to get divorced – inheritance rights.
Under Minnesota law, a surviving spouse is typically entitled to receive all of the dying spouse’s property, absent a prenuptial agreement to the contrary. This is true even if the dying spouse were to intentionally write a will omitting their spouse from receiving any property. Minnesota law prevents married people from being disinherited. Sometimes, the only way to prevent a spouse from inheriting is to get divorced.
It is important to understand, though, that starting a divorce does not, in itself, stop a spouse’s right to receive property. In order to completely prevent a spouse from inheriting, the parties must be divorced before the terminally ill spouse dies. If the spouse dies before the divorce is complete, Minnesota family law requires that the divorce be dismissed and that the court treat the parties as if they were still married at the time of the death. This can have devastating consequences for the wishes of the terminally ill spouse.
If one party is sick, the way to handle the situation is to ask the court to divorce the parties first and to resolve all remaining property issues later. That way, if the party were to die before the property issues were resolved, a relative could step in to finish the case.
For more information about Minnesota divorce cases or to talk to an attorney about divorce or family law, please check out our website at www.gadtke.com.
Robert W. Gadtke is a Minneapolis divorce attorney with the law firm of Gadtke & Beyer. His practice focuses on helping clients protect their children in custody cases and getting a fair financial settlement. His eBook, 10 Top Divorce Mistakes and How to Avoid Them, can be found on his website. He also maintains a blog devoted to divorce, child custody, and family law issues.