The divorce process is a turbulent time, with strong emotions mixing with distressing legal procedures. But when the death of one spouse is thrown into the mix, the divorce process suddenly takes a detour that could leave the surviving spouse wondering what happens next. Does the divorce continue? What happens to the division of marital property? And do inheritance laws still apply if we were in the middle of a divorce?
Any unexpected death is a tragedy, but when it comes during the divorce process, it may be difficult for the surviving spouse to navigate the legal questions as well as the powerful emotions.
What Happens When There’s a Death Between Filing and Final Judgment?
California requires a 6-month waiting period between filing the divorce petition and the hearing and final judgment. During that time, divorcing spouses can choose to work on their marriage, or they can spend those months deciding the questions of division of marital assets, child support, and/or spousal support. If one spouse dies during the time period between filing for divorce and the final dissolution judgment, the divorce process stops. Though California courts can grant a default divorce when one spouse refuses to respond to a served divorce petition, it does not grant a divorce by default when one of the spouses dies. Instead, the surviving spouse becomes a widow or widower. The court dismisses the divorce case when one spouse dies before the process finalizes, even if some of the division of property processes have already begun.
What About the Division of Property and Debt?
Even if the process of a settlement agreement for the division of debts and assets has begun, all accounts and property revert back to the surviving spouse if the other spouse dies before the final divorce decree. In most cases, the division terms decided in the settlement do not begin the actual division process until after the final judgment. When a spouse dies before the divorce is final, the division process stops in its tracks and the joint property goes to the surviving spouse since all joint marital property is just that—jointly owned until separated by the final divorce decree which does not take place if the spouse dies before finalization.
The surviving spouse also takes on the deceased spouse’s share of the marital debt and becomes solely responsible.
Understanding Inheritance Rights When a Spouse Dies During Divorce
According to California’s rules of intestacy, when a spouse dies, his or her estate goes to the surviving spouse, regardless of whether or not they were separated at the time of the death or in the process of divorce. However, if the deceased spouse left a will behind, the terms of the will override the intestacy rules, which are in place only for those who don’t leave behind a last will and testament. If the deceased spouse updated their will during the separation to exclude the surviving spouse from inheriting any individually owned property or their half of the jointly owned property, the law carries out the terms of the will.
What Happens to the Child Custody Agreement After the Death of a Divorcing Spouse?
In the event of death during divorce in California, the surviving parent receives sole legal and physical custody of the children of the marriage. While they can no longer seek child support, the amount of support they would typically have received may be offset by their share of the joint assets as well as any death benefits.
The parents of the deceased may seek visitation rights to their grandchildren through the California court if the surviving spouse denies them access.
A California family attorney can give you more information about what happens next if your spouse died during your divorce.