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473 So. 2d 299

473 So.2d 299

10 Fla.L.Weekly 1869

Docket No. 84-2807.

Simpson v. Simpson

Ruby Louise SIMPSON, Appellant, v. Nathaniel Eli SIMPSON, Appellee.

District Court of Appeal of Florida

Decided August 6, 1985.

District Court of Appeal of Florida · decided 1985-08-06

Key passage — most relied on by later courts

“We agree with the trial court that the action for dissolution of marriage terminated with the death of the wife and was properly dismissed.”

quoted by 1 later decision, including 983 So. 2d 773 - Mercurio v. Headrick

Relies on 419 So. 2d 1194 - Thomas v. Ratiner · Sahler v. Sahler · 49 So. 2d 848 - Ashwood v. Patterson

Good law ✅— No negative treatment on recordhow we know

Decided 1985-08-06

How this case has been cited

Cited by 6 later decisions — most recently June 2008

6 state decisions

30198519902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Stephen F. Kessler, Miami, for appellant.

¶2No appearance for appellee.

¶3Before NESBITT, FERGUSON and JORGENSON, JJ.

¶4FERGUSON, Judge.

¶5This action commenced in the trial court on the complaint by the wife for dissolution of marriage wherein she alleged that her husband owned several guns and had threatened to kill her and her three children, two of a prior marriage. A motion for restraining order was granted orally but before it was reduced to writing, the wife was killed by the husband. For reasons not developed in the record, the husband was not prosecuted.

¶6The wife's attorney petitioned the court to divide the marital property so as to award the wife's share to her children, contending that the husband should not be permitted to acquire a survivor's interest in the wife's property.[1] The motion was denied and the case dismissed.

¶7We agree with the trial court that the action for dissolution of marriage terminated with the death of the wife and was properly dismissed. See Sahler v. Sahler,154 Fla. 206, 17 So.2d 105 (1944); Jaris v. Tucker,414 So.2d 1164 (Fla. 3d DCA) (rehearing en banc), appeal dismissed,419 So.2d 1198 (Fla. 1982). The division of the wife's property should be the subject of a separate probate action brought by a substituted party.

¶8For the same reason the dissolution action was dismissed this appeal is also

¶9DISMISSED.

NOTES

¶10[1] Appellant relies on section 732.802(2), Florida Statutes (1983) which provides that a tenant by the entirety who unlawfully and intentionally kills or procures the death of another tenant by the entirety effects a severance of the interest of the decedent so that the share of the decedent passes as the decedent's property and the killer has no rights by survivorship. Appellant also relies on section 732.802(5) for her contention that even in the absence of a conviction of murder, section 732.802(2) will apply so long as the killing is proved, by the greater weight of the evidence in a civil action, to be unlawful and intentional. Ashwood v. Patterson,49 So.2d 848 (Fla. 1951), also relied upon by appellant, states the common law principle codified by section 732.802(2).

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