What Happens When A Spouse Dies During A Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorneys; The Maggio Law FirmAs per the California family laws, a marriage will be accepted as terminated only in the event of divorce, annulment or the death of either spouse. In the event of a divorce petition being filed, as soon as the couple files for the dissolution of their marriage, the couple is regarded as ‘separate’ from that point forward. Such a separation is considered only until the final court verdict is announced regarding the change in the marital status of the couple, or either of the spouses dies. In the event of a spouse’s demise after a divorce petition has been filed, the family courts of California loses its jurisdiction to carry on with the trial and proceedings of the divorce and other related issues such as custody, support or property division.

Share in estate 

When an individual has filed for a divorce, and his or her spouse passes away before the family court can announce a final verdict, the case is automatically moot because a person cannot divorce a dead person.  At that point, this means that if a spouse dies during this period, the surviving partner is still deemed to be legally wed to the deceased.  Pursuant to California probate laws, the surviving spouse will have the right to claim their share in the estate of their deceased partner as instructed in the will, trust, or final testament of the deceased partner.  In case the deceased spouse had not created a trust or will, his/her estate will be divided and distributed as per the probate/intestate laws of California. 

Intestacy law of California 

As per the intestacy law of California, if a married individual dies without creating a will or a trust, his surviving partner will likely be the primary heir. To sum it up, in the event of death of a spouse during a pending divorce, the pending divorce case will be dismissed.  The surviving spouse can then proceed to a probate court for the property and estate division proceedings.

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