DIVORCED OR WIDOWED? Words matter

DivorceOne of the common ways divorce litigation ends is with mediation. Mediation is a method of alternative dispute resolution encouraged by the Texas Family Code and the Civil Practice and Remedies Code. In mediation the parties meet with a neutral who talks with the parties and explores the issues to see if there are areas of agreement. It is not binding. The parties are not required to agree. The mediator does not issue a decision, unlike an arbitrator or a judge.

When a mediation results in a settlement the mediator or one of the attorneys prepares a mediated settlement agreement to be filed with the court and from that MSA a Final Decree of Divorce. But what happens when one of the parties dies prior to the entry of the decree? It happens. In the last year I have personally seen it. More than once. More than twice.

According to the Second Court of Appeals in Parker vs. Parker (683 SW2d 889 Tx App – Fort Worth 1985, writ refused) unless the MSA contains a rendition and is signed by the court the parties are still married. Thus, the surviving person is widowed, not divorced. The difference can be HUGE as it was in the Parker case. When parties are divorced if the surviving party is listed as a beneficiary or an executor on the deceased parties insurance or on their will the surviving party is instead treated as though they predeceased the deceased party, and thus, the property of money would pass to the other heirs. But if the parties are not divorced? The property passes to the person the decedent intended to be divorced from.

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