What Happens If One Spouse Dies in the Middle of a Divorce?
Posted in uncategorized on March 31, 2021
If tragedy strikes in the middle of your divorce case and your spouse passes away, you will have many difficult questions that must be answered. These may include: “Will the divorce continue?” “What will happen to our marital property?” and “How does inheritance work?” Although every case is unique, yours is especially different if your spouse dies in the middle of your divorce case. You may need a divorce attorney in Solana Beach to assist you.
Do Divorce Proceedings End When a Spouse Dies?
Yes, divorce proceedings stop when a spouse passes away. If a spouse dies in the middle of a divorce, the case cannot continue. You cannot proceed with a divorce if the other party is deceased. Rather than becoming a divorcee, you will become a widow/widower in the eyes of the law.
Although you can continue with a divorce case if your spouse refuses to sign the papers, you cannot continue if he or she dies during the divorce process. There will be no reason to continue with a divorce as a widow or widower. The court hearing the case may dismiss the motion for dissolution of marriage or transfer the case to a different court.
The most common scenario is the court dismissing the case and not granting a divorce if one party passes away. In some states, however, the family court may continue with the case to divide marital property. In other states, the family court may pass the case to the probate court to handle the deceased spouse’s assets. No court, however, will grant a divorce if one spouse has passed away.
What Happens to Community Property After a Spouse Dies?
In California, community property is all the assets and earnings you and your spouse acquired during your marriage. In a typical divorce, the courts divide all community property evenly – 50/50 – between both spouses. If one spouse dies before the divorce is finalized, however, the surviving spouse will typically gain ownership of all community property, unless a will or testament has a different plan for the assets.
Since the divorce was not finalized, the surviving spouse will have the right to inherit property from the deceased person’s estate. In most cases, the surviving spouse will assume ownership of all community property as well as the deceased spouse’s separate property. If the deceased party had a will or estate plan, however, the probate courts will determine community property division based on these legal documents instead.
Unless the decedent changed his or her will after separation, this most likely means much of the community property will go to the surviving spouse. In some states, the surviving spouse can still inherit some of the estate even if the decedent tried to take him or her out of a will. Note that assets going directly to an heir outside of probate court – assets listed in a will or testament, as well as life insurance policies, trusts and retirement accounts – are not subject to the surviving spouse’s interest. This property will pass directly to the beneficiary without going through probate.
Marital Debts If One Spouse Dies
If your spouse passes away during your divorce, you will become solely responsible for his or her debts. Just as you will acquire his or her property, you will also acquire the debts. You will have the power to use the deceased person’s assets to help pay off his or her debts. If there are debts remaining, however, you will be responsible for paying them.
Child Custody and Support
You will assume sole custody if your spouse dies during your divorce. However, your child’s grandparents can seek visitation rights from the court. They can also ask for custody if they believe you to be an unfit parent. As for child custody or alimony, your spouse will no longer be able to pay. However, your portion of his or her assets should help you make up for financial losses.
For more information about a spouse’s death during a divorce case, please contact an attorney