Section 2-802
(a)
An individual who is divorced from the decedent is not a surviving spouse unless, by virtue of a subsequent marriage, the individual is married to the decedent at the time of death. A judgment of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
(b)
For purposes of parts 1 to 4, inclusive, of this article, and of section 3-203, a surviving spouse shall not include:
- (1) an individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in the commonwealth, unless subsequently they participate in a marriage ceremony purporting to marry each to the other or live together as husband and wife;
- (2) an individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third individual; or
- (3) an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.
Comment
Rationale
Although some existing statutes bar the surviving spouse for desertion or adultery, the present section requires some definitive legal act to bar the surviving spouse. Normally, this is divorce. Subsection (a) states an obvious proposition, but subsection (b) deals with the difficult problem of invalid divorce or annulment, which is particularly frequent as to foreign divorce decrees but may arise as to a local decree where there is some defect in jurisdiction; the basic principle underlying these provisions is estoppel against the surviving spouse. Where there is only a legal separation, rather than a divorce, succession patterns are not affected; but if the separation is accompanied by a complete property settlement, this may operate under Section 2-204 as a waiver or renunciation of benefits under a prior will and by intestate succession.
Cross reference
See Section 2-804 for similar provisions relating to the effect of divorce to revoke devises and other revocable provisions to a former spouse.