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When Death Comes After Divorce in Texas

Divorce proceedings can take some time, and in the duration of an extended trial, anything can happen, even death. This is a reality that everyone has to face so the law in Texas.

Death Prior to Finalization of Divorce

When a death occurs before the divorce is finalized, the decision is easy for the judge. The case will be dismissed since the marriage would have technically ended. The judge can request a death certificate. In many cases, this has not been required, and it is understood by both parties that the proceedings have ended.

The issue at hand will be the division of properties. The divorce court will no longer have jurisdiction over this since it is no longer a divorce case. It will then be up to the probate court. The law states that unless the departed spouse has specified his/her personal property in his/her will, the shared property will be inherited by the surviving spouse. It is as if there were no divorce proceedings at all. 

This is why divorce lawyers would tell their clients to accomplish their will once the divorce has been filed. 

Temporary Orders

At the early stage of a divorce proceeding, there are temporary orders that the court may impose. These orders will dictate the prevailing terms between the divorce petitioners until the final terms of the divorce have been agreed upon. These orders cover such things as the household bills and maintenance of your conjugal residence, bills and expenses and also the children. 

The temporary orders regarding the property will be rendered moot as mentioned earlier since the property will now be transferred to the surviving spouse in the absence of the will, but the judge can still call implement orders regarding the children as the judge deems necessary. This is simply in respect to the welfare of the children, but custody is a different story.


Custody and conservatorship of the children until they reach the age of maturity will be placed on the surviving parent. Whether you are the proponent of the divorce or the reason the divorce was filed, you will become the sole managing conservator of the children as the only surviving parent. 

Any limitations on custody and visitation restrictions would be lifted. The surviving parent would have full possession of the children unless there would be legal impediments to the contrary. Example are cases of child abuse or neglect. However, that is a separate case and no longer part of the divorce proceedings.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at timothy.hutton@austintexaslegal.com

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