If a spouse dies after signing a separation or settlement agreement but before the judge approves it, the agreement can still be enforced.
What Happened in Guthrie
Guthrie v. Guthrie, 277 Ga. 700 (2004), is the case on point. A wife filed for divorce, the parties mediated, and both spouses and their attorneys signed a settlement agreement. Before the court considered it, the husband hired new counsel, renounced the agreement, and moved to set it aside. He then died before the court ruled on it or entered any divorce decree.
The divorce action itself was dismissed, because an unresolved claim for divorce is personal and abates on death. His executors probated his will. The wife sued to enforce the settlement agreement, and the executors argued it was unenforceable.
The Holding
The Georgia Supreme Court held “that the agreement could be enforced even where one of the parties died before the entry of a judgment of divorce.” It relied on the principle that “the enforceability of a settlement agreement disposing of property upon marital separation does not turn on whether both parties to the contract survive or on whether a final judgment of divorce is entered.”
The Judge’s Discretion Ends
There is a second point in Guthrie worth knowing. Once the divorce proceeding is gone, so is the trial court’s discretion over the agreement. The agreement must instead be read “under the ordinary rules of contract construction,” and the trial court erred by evaluating it as though it were still deciding whether to incorporate it into a decree.
So what the document says becomes decisive. In Guthrie, terms showing the parties meant the agreement to take effect immediately, and not to depend on a divorce being granted, carried the day.
Contact Us
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!