In California, a marriage may be terminated only by a judgment of marriage dissolution, a judgment of nullity, or by the death of one spouse. When one spouse dies, their death dissolves their marriage as a matter of law. If one spouse dies after the filing of divorce but before there is an entry of judgment, the California Family court will lose jurisdiction to continue with the divorce or any other issues raised in the pleadings. This includes property rights, support, custody, attorney fees and costs.
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Spouse Dies During Divorce
My spouse passed away. What happens to my divorce if my spouse dies? Can I still get divorced if my spouse is dead?
If one spouse dies, before a California Family court enters a final judgment, the case is dismissed. Once you file for divorce, you and your spouse are considered to be separated. Even though you are separated, the “marital status” continues to exist until a California court enters a final judgment of dissolution or one spouse dies. In California, you must wait at least six months and one day before your divorce is finalized, and during this time the surviving spouse will still be legally married and will be entitled to their share of the deceased spouse’s estate in a California Probate Court action.
When one spouse dies, the family law court no longer has jurisdiction. The probate court will address distributions to beneficiaries.
When a spouse dies, their estate will be distributed according to California intestate laws if they did not have a will or trust. Otherwise, the estate will be distributed according to the provisions in the will or trust. California intestacy rules provide that when one spouse dies, all of that spouse’s community property is awarded to the surviving spouse. The surviving spouse will need to file a California Spousal Petition in the probate court to establish ownership of community property. All of the deceased spouse’s separate property is awarded to the surviving spouse if the deceased spouse has no “heir;” living children, parents, brothers, sisters, or children of a deceased brother or sister. The surviving spouse receives one-half of the deceased spouse’s separate property if the deceased spouse has one heir. The surviving spouse received one-third of the deceased spouse’s separate property if the deceased spouse has two or more heirs.
Will or Trust
When a spouse dies, they may have, during their lifetime, created a will or trust. If so, the provisions of either the will or trust will be executed by the will administrator or the trustee of the trust. The deceased spouse can leave their half of community property and all of their separate property to anyone they choose using a will or a trust.
Bifurcation of Marital Status
The parties agree to allow a Family Law court to rule on the marital status separately from any issue regarding property, child custody or support. A California Family court will address the divorce and reserve all other issues.
Should the marital status be bifurcated from the other issues, the personal representative of the deceased spouse’s estate will be substituted as a party to the still-pending action and the California Family court will have the ability to issue orders as to any reserved issues.
If the parties terminated their marital status prior to the death of one spouse, the deceased spouse’s estate will need to be represented in the California Family court. The California Family court must accept the personal representative of the deceased spouse’s estate as a party to the pending dissolution of marriage action. If a California Probate court has not appointed a personal representative, the deceased spouse’s successor in interest may represent the deceased spouse in the California Family court.
Division of Community Property
When one spouse dies during a divorce proceeding, a California Probate court has jurisdiction to divide community property prior to termination of marital status and after a final judgment. A California Family court has jurisdiction to divide community property after termination of marital status, but before final judgment.
The determination of which California court has jurisdiction can affect the division of community property. There are three property division issues that will be decided differently; the allocation of joint tenancy real or personal property when a spouse dies before conclusion of the dissolution; the right of a spouse who contributed separate property to acquire joint tenancy assets or community property during marriage to reimbursement based on tracing alone; and the distribution of a pension, profit sharing, or retirement plans.
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