The fleeting nature of human life at times results in the death of a parent/spouse during the pendency of litigation involving domestic matters, including actions for divorce, alimony, child custody, and child support. What happens to those cases when a party dies? Can another person take the deceased party’s place and continue the action in the decedent’s stead? Or does case, and the court’s authority over the parties and issues, automatically end? This article attempts to answer those questions. Under Georgia law, as in most states, the death of a party before or during the pendency of an action extinguishes all claims which are personal to the decedent.(1) Such personal claims include those for divorce and alimony. Specifically, the death of one party before entry of the divorce decree abates the action as to divorce and alimony. Likewise, an action to modify a prior alimony award also constitutes a purely personal claim which does not survive the death of either party(2). While statutory law permits substitution of appropriate parties in certain cases, that law allows substitution upon death of a party only when “the claim is not thereby extinguished.”(3)

To our knowledge, Georgia’s appellate courts have not yet specifically confirmed that claims for child custody or visitation are personal to the petitioner and extinguish upon the petitioner’s death. The principle nonetheless seems obvious, in view of a) the existence of dedicated statutes providing for independent custody and visitation actions, or interventions in existing custody cases, by various designated relatives and equitable caregivers(4), and b) the absence of a statute or published appellate decision allowing any person to substitute for a parent in a custody case upon the death of that parent and to seek custody/visitation under the same standards applying to the deceased parent.

While Georgia courts may not yet have spoken, appellate courts in other states have explicitly included child custody claims among the personal claims which extinguish upon the death of a parent.(5) For example, in one North Carolina case, a father moved to modify an order awarding custody to the children’s mother, and the mother died prior to a hearing on father’s motion. After mother’s death, the maternal grandmother filed a motion to intervene in what had been the custody case between the parents. The trial court denied grandmother’s motion to intervene and dismissed it as well as the father’s motion to modify custody, ruling that “the court's subject matter jurisdiction had ceased in the case and terminated the custody proceedings between [father and mother].” In affirming the trial court’s ruling, the North Carolina Court of Appeals held that a grandparent’s right to visitation is dependent on there either being an ongoing case where custody is an issue between the parents or a finding that the parent or parents are unfit. Because the ongoing case between mother and father ended upon mother’s death, there was no ongoing custody action when grandmother filed her motion to intervene.(6) Similarly, in a Missouri case, following a divorce, the minor children’s father moved to modify custody but died before the court ruled on his motion. The trial court nonetheless proceeded to enter an order awarding primary legal and physical custody to the father; and after the father’s new wife (the children’s stepmother) filed a motion for leave to intervene, the trial court granted custody of the children to her. In reversing the trial court on the ground that father’s death had deprived the court of jurisdiction, the Missouri Court of Appeals also held that the trial court’s oral determination, before father’s death, that mother was unfit, unsuitable and unable to be custodian of the children, without an accompanying order on father’s motion before his death, could not prevent abatement or provide the court with jurisdiction to enter an order after father’s death.(7)


(1) See, e.g., Charles v. Citizens & Southern National Bank of Atlanta, 225 Ga. 549, 170 S.E.2d 243 (1969); and Webb v. The Warren Co., Inc., 113 Ga.App. 850, 852, 149 S.E.2d 867 (1966). (2) Charles, supra. (3) O.C.G.A. § 9-11-25(a)(1). (4) See, e.g, O.C.G.A. § 19-7-1(b.1); O.C.G.A. § 19-7-3; and O.C.G.A. § 19-7-3.1. (5) See, e.g., Lizak v. Schultz, 496 N.E.2d 40 (Ind., 1986); In re Marriage of Wilson-White and White, 912 N.W.2d 494, 496 (Iowa Ct. App., 2018); Pollard v. Pollard, 316 S.W.3d 246, 250-251 (Tex. Ct. App., 2010); McDuffie v. Mitchell, 155 NC App. 587, 573 S.E.2d 606, 607-608 (N.C. Ct. App., 2002); and Winters v. Cooper, 827 S.W.2d 233, 234 (Mo. Ct. App., 1991). (6) McDuffie, supra, 573 S.E.2d at 607-608. (7) Winters, supra, 827 S.W.2d at 234.

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