The Unexpected Death Of A Spouse During Divorce

By Gerald A. Maggio, Esq.

Orange County divorce; California Divorce MediatorsIf one party to divorce unexpectedly dies during proceedings, and by legitimate means, the other spouse may have all the assets in his or her favor. In such cases, if the deceased spouse has a previous marriage, and has children from that former marriage, then those children will not get anything at all. The result will be that a lot of people will become extremely disgruntled.

Complicated proceedings

It is thus recommended that couples on the cusp of divorce should consult a specialist estate planning attorney as quickly as possible. This must be done after the petition is filed. It should also be found out whether a divorce should be executed so that the loved ones get protected even if there is an untimely death.

Death at the time of divorce proceedings can be extremely complicated. The subject is a convoluted one and it is a lengthy process to solve every twists and turns. Usually, in Orange County, California, if one of the spouses in a divorce proceeding dies prior to their status being resolved, then the estate gets handed down as if there has been no petition filed.  In other words, the divorce case becomes moot and cannot be completed, because you cannot divorce a deceased person. In case a spouse dies after entry of their judgment and the dissolution of marital status, then there will be a termination of non-probate transfers. Life insurance, however, is not terminated.

Restraining orders

In California, automatic restraining orders are embedded with family law summons. This goes into effect immediately against the party who has filed the case after the petition is filed. The responding party gets restricted the moment the papers are served to them. Such automatic restraining orders prevent both the parties from taking any action during divorce proceedings which would alter the beneficiaries’ designation and the other specified actions. Any divorce will not lead to violation of such restraining orders and thus it remains a valid way to make sure that the individual you divorce from would not inherit any more wealth from you if you die during the process.

In case of a will, it is possible for you to revoke pour-over will. You can then create new will. It is possible to revoke RLT with notice to other spouse. You can also fund new RLT with your spouse’s consent. Do keep in mind that it is not possible to remove the spouse as a life insurance beneficiary sans a court order. In case you have listed the spouse as beneficiary on 401(k), then it is important that you should obtain from your spouse his or her informed consent.  However, you should always consult with a probate attorney to understand your complete rights and the law in the event of the death of your spouse before taking any action.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation