In California, in the event that couples may reconcile, there is a six month waiting period for a divorce to be finalized. If on spouse passes away after you have filed for divorce, but before the final judgment is entered by the court, the case is dismissed. While one spouse becomes a decedent, the other spouse becomes a widow or widower. Put simply, you cannot obtain a divorce from someone who is deceased. In California, you will be considered legally married when the estate is distributed.
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Death During Divorce
Death During Divorce refers to a situation where one spouse dies during divorce. The deceased spouse’s estate will then be distributed in accordance with a will or trust, if they left one. Otherwise, the spouse’s estate is handled according to California’s intestate laws.
When there is a death during divorce in California, all of that person’s community property goes to the surviving spouse. This includes all property purchased during the marriage. The surviving spouse may need to file a spousal petition to establish ownership of community property. The deceased spouse’s separate property is awarded entirely to the surviving spouse if the deceased spouse did not have any living children, parents, brothers, sisters, or children of a deceased brother or sister. If the deceased spouse has one of these relations (heirs), the surviving spouse receives only one-half of the deceased spouse’s separate property; the other half goes to the surviving heir. If there are two or more heirs, the surviving spouse receives one-third of the deceased spouse’s separate property; the other two-thirds go to the surviving heirs.
If the deceased spouse left a will, the terms of the will are controlling. This means that the deceased spouse can bequeath their one-half of the community property and all of their separate property to anyone they choose.
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