Divorce Appeal Dismissed Against Spouse’s Estate

The Virginia Court of Appeals recently dismissed an appeal by a woman seeking to challenge one of the monetary terms of her divorce after her husband died. The Court dismissed the appeal because the wife should have named the husband’s personal representative, and not his estate, as the adverse party after his death.  The decision is Loewinger v. Estate of Stephen J. Loewinger. 

During the divorce proceedings, the wife argued that she should receive half of the equity accumulated in the couple’s first marital residence based on their premarital agreement. The trial court disagreed, issuing a decree finding that, after the couple sold their first home, they spent the equity.  The parties continued to litigate the divorce proceedings over child custody and visitation issues.  When the husband died, the trial court dismissed the divorce.  The wife then moved to substitute her husband’s estate as the adverse party in interest, and the trial court agreed.  The wife appealed the trial court’s decree to the Virginia Court of Appeals.

On appeal, the Court ruled that the wife could not proceed in litigation against the husband’s estate. Under Virginia law, a party can only pursue litigation against a living person.  An estate does not qualify as a person – rather, the personal representative of the estate is the proper adverse party.  (While one can bring a claim against property of the estate, one cannot bring a legal action against the estate itself.)  Thus, the divorce appeal was invalid and had to be dismissed.

As this case shows, there are many potential pitfalls in pursuing all of your rights through the full process of a divorce. May Law attorneys are skilled and active domestic relations practitioners, and are ready to assist you with your situation.