If the plaintiff spouse dies before the hearing of a divorce action, what happens to the inheritance right of the surviving spouse?
The inheritance right (Article 1822 of the Civil Code (AK)) of the surviving spouse is excluded if the decedent, having a well-founded ground for divorce, had filed a divorce action against his or her spouse. That is, exclusion of the inheritance right in its entirety occurs automatically by operation of law, including the forced heirship share and the surviving spouse’s exairetón (privileged share), provided that the decedent had exercised the right to seek dissolution of the marriage by divorce, on condition that there was a well-founded ground, namely a lawful cause justifying the constitutive relief sought (Areios Pagos 766/2004 EllDik 2005.454; Athens Court of Appeals (EfAth) 618/2007 EllDik 2007.903).
Does the surviving “defendant” inherit from the deceased plaintiff?
More specifically, it follows that the surviving spouse is called to the inheritance of the deceased spouse solely on the basis of his or her marital status (Article 1820 AK), which he or she is required to prove and which continues to exist until the divorce judgment becomes final and irrevocable (Article 1438 AK). However, the heirs of the decedent may overturn the calling thus arising (as intestate heir) to the inheritance, by raising the exclusion from the inheritance, if they invoke and prove (EfAth 1815/2009 EllDik 2009.1506) the filing of a divorce action by the deceased spouse and the well-foundedness of the ground invoked therein, which no longer needs to be attributable to fault of the surviving spouse (AP 766/2004 EllDik 2005.454; AP 1281/1993 EllDik 1995.124; EfAth 618/2007 EllDik 2007.903; EfAth 3835/2003 EllDik 2004.883; EfAth 864/2002 EllDik 2002.819; EfAth 97/2000 EllDik 2000.1417).
Is a declaratory action required as to the well-foundedness of the divorce ground?
Furthermore, since upon the death of one of the spouses the pending divorce proceedings are abated (Article 604 of the Code of Civil Procedure (KPolD)) and the divorce action, being personal in nature, is not transmitted to the heirs of the deceased spouse, every heir of the deceased spouse, as well as every third party, such as a debtor of the relevant estate, who, having a legal interest, seeks to exclude the surviving spouse from the inheritance, must bring a declaratory action against the surviving spouse for the well-foundedness of the divorce ground (AP 1796/2005 EllDik 2006.812; EfAth 3835/2003 EllDik 2004.883; EfAth 864/2002 EllDik 2002.819; EfAth 4485/1993 EllDik 1995.217).
- See also article Certificate of Inheritance
- See also article Renunciation of Inheritance by a Minor
- See also article Contesting a Will
- See also article Death of a Bank Depositor
- See also article Forced Heirship
- See also article Classes of Intestate Succession
- See also article Kinship
- See also article Power of Attorney Abroad
FREQUENTLY ASKED QUESTIONS ON Death of a Spouse Before the Issuance of Divorce
1. Does a spouse who died while divorce proceedings were pending inherit?
As a rule, the surviving spouse is called to the inheritance on the basis of marital status, which continues to exist until the divorce judgment becomes final and irrevocable (Article 1438 AK). However, Article 1822 AK provides for exclusion from the inheritance, if the decedent had filed a divorce action on a well-founded ground. The exclusion operates automatically and covers the entirety of the inheritance right, together with the forced heirship share and the exairetón (privileged share). Mere filing of the action does not suffice; the well-foundedness of the ground must also be proved judicially by the interested heirs.
2. How do I exclude the surviving spouse from the inheritance?
Since upon death the divorce proceedings are abated (Article 604 KPolD) and the action is personal, it is not transmitted to the heirs. Anyone with a legal interest — children, parents, siblings of the decedent, even a debtor of the estate — files a declaratory action against the surviving spouse, seeking judicial recognition that the divorce ground invoked by the decedent was well-founded. It is noted that following the reform, fault of the surviving spouse is not required; it suffices that a lawful cause for dissolution of the marriage exists, such as serious breakdown or two-year separation.
3. How long does the exclusion procedure take?
The declaratory action is filed before the Single-Member Court of First Instance and follows the ordinary procedure. From filing to hearing, generally one to two years elapse, depending on the court’s docket. Issuance of the judgment usually requires another six to twelve months. In the event of an appeal, the total time until a final and irrevocable judgment may reach four or five years. In parallel, the heirs must take care of interim measures or notations on the certificates of inheritance, in order to prevent transfer of assets by the surviving spouse before the final ruling.
4. What documents do I need for the action?
Required are the marriage certificate, the death certificate, a certificate of nearest relatives, a certificate as to non-publication of a will or a copy of the will if one exists, and a copy of the divorce action filed by the decedent together with the relevant service reports. Particularly critical are the items of evidence as to the well-foundedness of the divorce ground: messages, witnesses to the separation, evidence of relocation, affidavits. Also useful are the pleadings or briefs filed by the decedent in the pending divorce proceedings, since they typically set out the factual circumstances supporting the petition for dissolution of the marriage.
5. What are the chances that the action will be upheld?
The chances depend mainly on the stage at which the divorce proceedings stood and on the evidentiary means. Where there is a proven two-year separation, serious breakdown supported by clear facts, or an admission by the surviving spouse in earlier proceedings, the action has substantial prospects of success. Conversely, if the divorce action had been filed only recently and had not yet been heard, proof becomes more difficult. Case-law (AP 766/2004; EfAth 1815/2009) accepts that an objective lawful cause for dissolution of the marriage suffices, without fault of the surviving spouse being required — a factor that significantly facilitates the plaintiff heirs.
6. What is the role of the lawyer in this procedure?
The lawyer first examines whether the conditions of Article 1822 AK are met, by reviewing the divorce case file and the factual circumstances. The lawyer drafts and files the declaratory action, gathers evidentiary means, takes affidavits and represents the heirs before the court. In parallel, the lawyer attends to the protection of the estate property through interim measures, the filing of a declaration with the land registry or the national land registry (Kτηματολόγιο), and handles the issuance of a certificate of inheritance without reference to the surviving spouse. Our firm’s experience in inheritance-law matters with elements of family disputes ensures comprehensive and effective handling.