My Ex Dies During or After our Divorce, What Now?

Divorce is usually not top of mind when couples envision living happily ever after. But it can be a financially strenuous and mentally stressful potential outcome of marriage. A spouse’s death during this process adds another layer of legal complexity.

In California, the timing of one spouse’s death within the divorce process determines the legal impact on the surviving spouse. Whether death occurs during the division of assets or custody negotiations, significant decisions depend on where the former couple’s case legally stands at the time of death.

Death Before Divorce is Finalized

If either spouse dies in the middle of a dissolution without any court orders previously issued or judgments entered, the divorce proceedings end immediately. If one party dies before the marriage legally ends, the court dismisses the case since there is no longer a marriage to dissolve.

The surviving spouse is not deemed a divorcee, but rather a widow or widower. In this scenario, a probate court resolves all unresolved issues, since the family law court no longer has jurisdiction over the case.

Death Before Division of Assets

Since California is a community property state, family law courts usually split all assets equally between the parties.

But if one party passes away during the proceedings, the surviving spouse would gain ownership of all community property and can inherit from the deceased party, under California intestacy laws, as long as they had a valid will before passing.

If the deceased had a valid estate plan (such as a will or a trust), the plan would guide the distribution of inheritance and the division of community property instead.

Death Before Custody Orders

The surviving spouse would typically gain full legal and physical custody of the children unless the surviving parent is found by the courts to be unfit.

However, in California, the parents of the deceased party may apply for visitation rights of their grandchildren.

The Effect of Court Orders

The divorce process is lengthy. There is at least a six-month waiting period that starts at the filing of the divorce petition (this is considered the “cooling-off period”). During and after this period, a family law judge may issue orders that significantly affect the surviving spouse. Two examples include:

Status-Only Divorce

Also known as a bifurcation of marital status, this court order is a final judgment that officially ends a couple’s marriage status allowing them to be legally divorced. The court can issue it only after the mandatory six-month period concludes. The order does not resolve other critical issues such as property division, spousal support, or child custody.

If a spouse dies after a status-only divorce order is issued, the marriage is legally dissolved. Case law allows the family law court to continue to rule on the other matters with the deceased party’s estate or, if none, the decedent’s successor in interest stepping in as party to the still-pending action. Probate court is not necessary.

Pendente Lite Orders

These are temporary orders issued by a judge during divorce proceedings, regarding spousal support, child custody, and other timely needs. The court may issue payments like temporary spousal support to support the lower-earning spouse.

If either spouse dies during divorce, temporary orders usually expire and become unenforceable. The case is dismissed, and the parties are considered married at the time of death. Probate courts handle all pending divorce-related issues as the family law court loses jurisdiction.

Death After Divorce Judgment

Once the divorce is finalized, and a final judgment is entered on all issues, both spouses are legally divorced. Neither spouse’s death has a legal impact. A family law court would follow the divorce decree.

The surviving spouse no longer has rights to spousal support or child support, if they were receiving it.

In terms of child custody, California Family Code §3010(b) states that if one parent dies, the surviving parent is entitled to sole custody of the child. Similar to a death during divorce proceedings without a court order, there are exceptions to this rule.

Final Thoughts

The divorce process in California involves numerous variables for individuals to manage. A death further complicates this intricate legal process.

If one spouse unfortunately dies during proceedings, it is of increased importance for the surviving spouse to understand whether the divorce was finalized when the death occurred. The surviving spouse’s rights can drastically change, depending on the timing of the death.

Experienced family law counsel can provide the surviving spouse thorough guidance regarding procedures in such an event.

Nancy Martinez is a Family Law Attorney at Lewitt Hackman