When an ex-spouse dies, there may be a lot of stress and confusion when it comes time to organize their affairs and ensure that everything is distributed properly. Even when divorced, you have a right to some of the assets and property left behind, but how do you determine what goes to you?

With an uncontested divorce, things can be even less clear. You and your ex-spouse ended things on agreeable terms, and while you may not be close, you were likely at least amicable enough to have arranged everything yourself. But what happens to an uncontested divorce when one spouse dies? Does it go to probate?

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What is Probate?

Probate is the process of identifying, gathering, and distributing the assets, property, and debts of a deceased person. It is a court-supervised process and involves the deceased person’s descendants and next of kin.

Probate is required for a deceased person’s assets to transfer to their next of kin or beneficiaries. If you filed an uncontested divorce, there may be a lot that’s unclear.

Does an Uncontested Divorce Ever Go to Probate?

Uncontested divorces are not handled by the court. Couples must come to a complete and final agreement on their own or with the help of an attorney, but the court will not get involved. If the court must get involved, then the divorce will need to be switched to an uncontested divorce.

When dividing property during your divorce filing, it’s important to be very clear about what belongs to whom. When one spouse dies, the court will rely on this in order to determine how assets should be divided.

As uncontested divorces must thoroughly cover all aspects of the divorce and division of assets, they will not go to probate. The filed divorce document will cover all information regarding assets, property, and debt, which, once finalized, cannot be changed.

Depending on the terms of your divorce and how assets are divided, the court will act accordingly when settling your deceased ex-spouse’s affairs. Unless your ex-spouse paid alimony or agreed to give you specific assets upon their death, the court will generally not take your uncontested divorce into account or take it to probate.

In many cases, you cannot file an uncontested divorce if you have minor children, are pregnant, or are requesting child support. As child support payments are often considered during probate, you will need to file for a contested divorce in order to benefit from them and have your divorce go to probate. If this is your situation, then switching from an uncontested divorce to a contested divorce is not impossible.


Divorce proceedings can be complicated, especially when an ex-spouse passes away unexpectedly. Having the right divorce attorney on your side to give you legal advice and representation will help ease the process and take away some of your stress. Don’t hesitate to call us today to see how we can help you with your divorce situation.