What Happens When A Party To A Divorce Dies?

With the statistical rise of later-in-life divorces and court-congestion and delays, the issue of the death of a spouse happens more often than you might think.

When one party to a divorce dies, the first question is whether or not the dissolution (called status) has been taken. If so, then the court has the power to finish the property division. An application just be made in probate court to appoint a successor or executor to handle the family law action, and the property is then divided according to the family law codes.

The same thing can occur if the parties have signed and submitted an agreement or judgment prior to the death or the court has taken matters under submission prior to the death. In these cases, the court can enter the judgment/agreement or issue rulings on the submitted issues.
If the parties have NOT had the status of the marriage terminated, then the divorce action is bated, meaning that it is essentially ended because it is moot. In that case, the parties’ property will be divided in probate court under probate rules. For this reason, it is important that parties with property to divide see a estate planning attorney at the beginning of the case to make sure they have severed what joint interests they can legal sever (without changing the nature of community property) to make sure their chosen heirs will inherit the property, rather than their ex-spouse.

In such cases where child support obligations are owed by the party who dies, child support can be obtained out of their estate for the benefit of the children.

DISCLAIMER: All legal principles quoted are valid as of the date of writing in the State of California. However, you should NEVER base your actions on a legal article, blog, or internet story, as facts in real life are complicated. You should have your case evaluated by an attorney experienced in the area of law needed for your case. In addition, there are often exceptions and potential changes to results that occur due to facts that you may think are trivial or unimportant. This article should not be taken in any way as legal advice on your specific legal matter.

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