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. Our office has the experience to handle both your divorce and probate matter.
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Death of a Spouse During Divorce
The death of a spouse during divorce ends the divorce proceeding. What happens if my spouse dies during divorce?
In California, the death of a spouse during divorce will cause the dissolution action to be dismissed. When one spouse died, their estate will be distributed in accordance with a will or trust otherwise, is handled according to California’s intestate laws if your spouse died without a will or trust.
Division of Community Property
Who gets the community property? What goes to the dead spouse’s estate?
When one spouse passes-away in California, all of their 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.
Last Will and Testament
What happens to the community property if the deceased spouse left a will?
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.
What happens to the divorce proceeding? Is our case concluded?
The death of a spouse during a divorce proceeding not only affects the divorce proceeding but the probate of the deceased spouse’s estate. There are other steps you will need to take should you spouse die such as creating an inventory of the estate. If the deceased spouse has a will or trust, this may be somewhat easier, but you will still need to do an accounting for the estate.
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For more information on other issues that may evolve with the death of one spouse during a divorce, click on one of the following links: