A surviving spouse normally has the first claim to be put in charge of a deceased spouse’s estate. A pending divorce takes that away.
Who Gets Appointed When There Is No Will
Under OCGA 53-6-20, the heirs of a person who dies without a will may unanimously select the administrator. Failing that, the probate court appoints whoever will best serve the estate, working through a stated order of preference that begins with the surviving spouse.
Both routes carry the same exception. The unanimous-selection route is unavailable where the sole heir is the surviving spouse and an action for divorce or separate maintenance was pending at the time of death, and the spouse’s first-place preference is withdrawn in the same circumstance. The suit only has to have been pending. It does not have to have been decided.
The Rule Follows the Will Too
OCGA 53-6-14 does the same thing on the testate side. Where the beneficiaries under a will select an administrator with the will annexed, a sole-beneficiary surviving spouse is disqualified from that selection if a divorce or separate maintenance action was pending when the testator died.
Removal After Appointment
Appointment is not permanent. In In re Estate of Williams, 241 Ga. App. 17 (1999), a man was appointed administrator of his former wife’s estate, then used estate funds to pay for the funeral of his daughter from a prior relationship. The probate court removed him for that and because his unpaid child support made him a debtor of the estate.
The Court of Appeals affirmed on the mismanagement ground alone, noting that OCGA 53-7-55 gives a probate court discretionary power to revoke a representative’s letters for good cause.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!