In light of recent lawsuits related to divorce after death, a need arises to clarify whether or not it exists in this jurisdiction and why it has become a problem in the first place. Ultimately, I trust that this article will help those trying to obtain divorce decrees learn how they can protect themselves and their property from the harsh effects of divorce and / or death.
To begin with, there is no divorce after death. It is true that some US states have begun to review and amend their legislative enactments to address the problem, but since nothing similar has yet been done, we are sticking to the word of the law.
Under Thai law, the death of one of the spouses puts an end to the divorce process of the person who filed the case. A divorce decree, on the other hand, ends your marriage ties. When death ensues pending the issuance of a divorce decree, there can never be a divorce to speak of. It’s just one or the other.
Why, then, is there a growing concern over what has been termed a “posthumous divorce”? Imagine a married couple whose marriage has turned sour for years and are now contemplating divorce. A divorce process can be heartbreaking and generally leads to unwanted results. It is at this point that a spouse who has separate properties must do everything possible to prevent these properties from being inherited by the same person from whom he is trying to separate.
Intestate inheritance laws could allow one spouse to inherit the entire estate of the other, regardless of the source and sometimes even regardless of the property regime, for example, in a case where there are no heirs or forced children.
So how can one’s property be protected against death pending divorce proceedings? Here are some suggestions:
1. Write a Thai Will. A will is a legal declaration by which a person, the testator, appoints one or more people to manage his estate and establishes the transfer of his property upon death.
Statements in a will come to life after the death of the testator. The testator comes to control his property even after death, assuming that the will is valid in all its formal and substantial aspects.
Family law expert Jonathan Wolfe, chairman of the American Bar Association’s family law committee, warned his divorce clients: “If you have a will, you should change it immediately. And if you don’t have a will, you need to have one. “
2. Sign a Thailand prenuptial agreement. A prenuptial agreement in Thailand is a contract entered into before marriage or civil union by people who intend to marry. The content of a Thai prenuptial agreement can vary widely, but commonly includes provisions for the division of property and spousal support in the event of divorce or breakdown of marriage.
Marriage is not just a special union between a man and a woman. It is a union of almost everything you have, including your finances. To ensure your financial well-being, especially if you are supporting children from a previous marriage or if your future husband or wife is not the same financial stature as you, you must sign a prenuptial agreement. There can be various reasons for doing this and it usually kills the romance, but in the case of marital difficulties, you will find out how much it can really save you from headaches.
3. Keep track of transactions made with your separate properties. Separate property can include property inherited before or during marriage or property acquired before marriage that is not part of the marital property.
In the case of death or separation of property in a divorce proceeding in Thailand, you may need to prove that these separate properties are indeed such. Otherwise, it will be divided according to the law, which most of the time is against the will of the owner.
For example, one of the spouses inherits a house from his parents and they lived in that house during their marriage. The other spouse paid for the maintenance of the house (taxes, repairs, etc.). In the course of the divorce proceedings, the non-heir spouse claims to be a co-owner of the house, having lived there and spent on its maintenance, which could be higher than the value of the house itself. Therein lies the problem. In the event that the inheriting spouse dies, the non-inheriting spouse may completely lose their claim to the home, to the detriment of their other legal heirs (i.e. siblings). If transaction records are kept, the source of the funds can be correctly determined and the non-inheriting spouse will simply be reimbursed for their living expenses. The property will remain in the hands of the legal heirs of the deceased spouse.
These are just a few of your options. Which of the aforementioned forms will suit one’s needs will mainly depend on the nature and number of properties involved, among other factors. One thing is for sure: your future is worth planning and cannot be done in article mortis.