Death During Divorce

Tomorrow is promised to no man. So what happens to a divorce action and property if one party dies during a dissolution proceeding?

The answer depends upon several things, most notably: 1) Did the other party cause the death? and 2) Was the marital status terminated early by bifurcation?

For purposes of this article, I am going to assume that the death is a result of accidental or natural causes, not criminally expedited.

During a divorce proceeding, either party has the right to ask the court to terminate the marital status before the other issues are finalized. With the current California budget cuts, a typical divorce in California is taking, on average, 1½ to 2 years to finalize. This being the case, a party may wish to remarry before then, or may just want the emotional closure that comes with being pronounced a single person again. By completing a bifurcation of marital status, the parties’ marital status is dissolved early.

If a party’s death occurs after their marital status is dissolved, then the family court maintains jurisdiction over the assets, and the decedent’s personal representative steps into the shoes of the decedent (figuratively speaking), and continues to process the property division.

If a party’s death occurs before their marital status is dissolved, then the property passes according to intestate succession or other governing estate plan, including survivorship and community property rights, and the family court loses jurisdiction over the property which now must be adjudicated by the probate court.

Notwithstanding whether a bifurcation of marital status has been completed in a case, there are several things that a concerned litigant may want to do to ensure that the spouse they are divorcing will not inherit any more than is necessary.

With real estate being valued as high as it is in California, probably one of the most important things to consider is severing any joint tenancies to properties. Holding property as joint tenants allows for the surviving spouse to receive the decedent’s entire property interest without probate. By severing the joint tenancy, the parties will no longer hold title as joint tenants, but rather as tenants in common. Each party will then be permitted to bequeath their ownership interest to someone else of their choosing. This can be a double edged sword however, because no one knows whether they will outlive their spouse.

Another important consideration is creating a “divorce will.” Although the back page of a California Family Law Summons contains automatic restraining orders (“ATROS”), the ATROS do not prevent either party from creating a new will and a new unfunded trust. The new will enables a party to decide an alternate inheritance plan other than their divorcing spouse. I recommend that parties make the effort to do such while their divorce is pending, “just in case.”