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Divorce After Death a Real Possibility

By Truman Lewis
ConsumerAffairs.com

July 5, 2006
A posthumous divorce might sound other-worldly but it's a very real possibility, thanks to recent changes in probate laws and some unusual lawsuits involving spouses who died during divorce proceedings, the National Law Journal reports.

In Pennsylvania, a dentist was killed in his home the night before he was to sign divorce papers. In Connecticut, millionaire developer Andrew Kissel was found murdered in his Greenwich home in April, nearly a year after his wife filed for divorce.

Admittedly, such cases are rare but recently revised state probate laws could cause unintended results for married people with children who die while getting or contemplating a divorce, experts warn, especially if they do not have a will.

Specifically, intestacy laws could allow one spouse to inherit another's entire estate, including assets that the other person didn't want the spouse to have, according to family law expert Jonathan W. Wolfe of Livingston, N.J. "Intestate" is the legal term for not having a will.

At least 18 states have changed their intestacy laws in recent years, adopting the Uniform Probate Code's intestacy statute, which allows a spouse to potentially inherit all assets in cases where there is no will. Previous statutes allowed children to inherit some of the assets.

The solution, according to Wolfe, is to have an up-to-date will, especially if you are contemplating divorce of have already filed for divorce.

"You are now in a position in your life where you don't want your separate assets to go to the person you're trying to divorce," said Wolfe, who chairs the family law committee for the American Bar Association's General Practice, Solo and Small Firm Division.

In the Yelenic case, lawyers are trying to ensure that the murdered husband's assets go to the couple's minor son, and not to the wife. Dr. John Yelenic separated from his wife in 2002, agreed to a divorce and signed a property settlement. He was slain at his home on April 13, 2006. The case has not been solved.

Yelenic's lawyer, Effie Alexander, is seeking a posthumous divorce decree, saying that is what her client would have wanted.

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