The Short Answer

In Florida, when a spouse dies before a final judgment of dissolution is entered, the divorce case generally ends—and you typically do not “continue” equitable distribution as a divorce remedy. However, because you are still legally married at the time of death, you may have significant probate rights as a surviving spouse (unless those rights were waived in a valid agreement).

What Florida Law Says

Florida probate law treats you as a “surviving spouse” if you were still married when your spouse died. That matters because many financial rights shift from the family-law framework (equitable distribution in divorce) to the probate framework (elective share, intestate share, homestead-related rights, exempt property, and other statutory benefits). Whether you can recover anything—and how much—often depends on how assets are titled, what estate planning documents exist, and whether you signed a marital settlement agreement or other waiver.

The Statute

The primary law governing this issue is Fla. Stat. § 732.201.

This statute establishes that a surviving spouse of a person who dies domiciled in Florida has the right to an elective share of the decedent’s elective estate, which can be critical when death occurs before a divorce is finalized.

Also important in many “death during divorce” situations is whether spousal rights were waived in a written agreement. Florida law allows broad waivers of spousal rights—sometimes even in agreements made in anticipation of separation or dissolution.

Fla. Stat. § 732.702 addresses waiver of spousal rights (including elective share and other inheritance-related rights).

For a deeper dive on probate-based options that may apply when you are still married at death, see: How Do Elective Share Claims Work in Florida Probate, and What Defenses Are Available?

Why You Should Speak with an Attorney

While the statutes provide the general framework, applying them after a spouse dies mid-divorce is rarely simple. Legal outcomes often depend on:

• Strict Deadlines: Elective share and probate claims are time-sensitive, and missing a deadline can permanently limit your recovery.
• Burden of Proof: Disputes often arise over whether a marital settlement agreement, prenuptial/postnuptial agreement, or other document legally waived spousal rights under Florida law.
• Exceptions and Asset Classification: What counts in the “elective estate,” what passes outside probate (beneficiary designations, joint ownership), and whether a dissolution-related order affects an asset can require detailed legal analysis.

Trying to handle this alone can lead to waived rights, avoidable litigation with the personal representative or heirs, or an outcome that does not reflect what Florida law actually allows you to claim.

Get Connected with a Florida Attorney

Do not leave your legal outcome to chance. We can connect you with a pre-screened Probate attorney in Florida to discuss your specific facts and options.

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Disclaimer: This article provides general information under Florida law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.