When a party in a Texas civil lawsuit dies, the case may proceed if the cause of action survives the death of the party. Tex.R.Civ.P. 150. Generally, when the defendant in Texas civil lawsuit dies, the plaintiff may petition for a “scire facias” to require the administrator, executor, or heir to defend the lawsuit.  Tex. R. Civ. P. 152. Pursuant to case law, however, Texas divorce cases are not subject to this rule because they are personal actions that do not survive the death of a party if judgment has not yet been rendered.  Generally, heirs do not take over a divorce case prior to final judgment.  Instead the divorce case abates when a party dies.  This means the court will dismiss the case.

Husband Dies During Divorce Suit

A wife recently challenged a trial court’s determination that her divorce petition abated upon her husband’s death.  The parties had married for about seven years when they divorced in 2000.  In 2018, they got married again.  The parties did not have any children together, but the husband had children from a previous marriage.  The wife petitioned for divorce in May of 2020. The husband filed an answer, but passed away the following January.  The wife sought to have the husband’s children defend the divorce on the husband’s behalf as his heirs.

The trial court found it did not have subject-matter jurisdiction to proceed, because a divorce petition, as a personal action, abates upon the death of either party. A judgment rendered by a court without subject-matter jurisdiction is void.

The wife appealed.  She argued the trial court erred because there is no statute prohibiting the division of property upon a party’s death.

Appeals Court Affirms Dismissal of Divorce Suit

The appeals court noted that well-settled case law has established that divorce is a personal action that abates on the death of either party before judgment on the merits is rendered.  The trial court did not have subject-matter jurisdiction over the divorce petition and therefore did not err in its finding.  The appeals court affirmed the trial court’s dismissal of the divorce case.

The significance of the divorce case abating is that the court will not divide the property.  Instead, the deceased spouse’s property will pass according to his or her estate plan or the laws of intestate succession. Whether that is more or less favorable to the surviving spouse will depend on the specific circumstances of the parties and their assets. Although in this case the wife wanted to proceed with the case against the husband’s heirs, in many cases the surviving spouse seeks to have the case abated.

Divorce Can be Unexpected – In Addition to Getting an Estate Plan, Call McClure Law Group Today

Although it may seem unlikely a party will pass away while a divorce is pending, divorces may take a long time and death can be sudden and unforeseeable.  A party anticipating a divorce may want to consider updating his or her estate plan. If you are facing a divorce, a skilled Texas divorce attorney can advise you on how to protect your assets and your rights.  Contact McClure Law Group at 214.692.8200 to schedule a consultation to discuss your case.