The purpose of this article is to reveal the potential problems that can arise when one of the spouses dies during the divorce process. Yes, death is a difficult subject to broach, especially when combined with divorce. But, the hard truth is that ignoring it doesn’t make it go away. In fact, it is likely that many of the readers of this article are often faced with the following persistent and recurring thought: “Tomorrow, yes, tomorrow I will prepare my will.”
Unfortunately, many people never get to write their will. And, as a result, the distribution of your estate may be contrary to your unwritten wishes. In simpler words: His coin collection, ’69 Camaro and 5 acres of land in Arizona may not go to his son. In fact, if he is in the midst of a divorce and dies without a will that reflects his current wishes, his soon-to-be ex-spouse could probably acquire the gifts he wanted to give to others.
It’s important to note a few things here to lay the groundwork. First, a divorce in California generally takes six months and one day for the couple to be “legally” divorced. So, after one of the spouses files a petition with the court to start the divorce, the spouses are now involved in a “dissolution proceeding”. This means that during these six months, and very often more, the spouses seek the assistance of the court. This assistance includes such things as temporary spousal support payments, temporary child support payments, and even requesting that the other spouse pay attorney fees. All of these mini-trials along the way happen before the divorce is final.
So the bigger question is, “What happens if I die after the divorce proceedings have begun but before the divorce is final?” Ready for this? It’s the same as dying as if you were still happily married. This truth should be a great motivator for people to face the reality of death and the increased difficulties it can cause during divorce without proper planning.
First, if you don’t have a will, or a will was drawn up before the divorce proceeding, drafting a new will is an important step to help ensure that your property, like the ’69 Camaro you purchased before your marriage, will remain . give it to your brother, not your future ex-husband.
Then, if you and your future ex-spouse own a home together, you and your spouse likely took title to the home as community property with right of survivorship or as joint tenants. If so, it is important to know the effects of having a title like this. In general, and to keep this simple, it’s easy if you think of ownership as if each spouse owns 50% of the house. And, if the spouses hold title in one of the two ways mentioned above, when one spouse dies, the other spouse will get the other half of the house, thus becoming 100% owner. (Of course, there are some documents to file with the court, but these filings are a topic for another article.)
So, if you die before the divorce is finalized, generally (not to discuss the complexity of forking issues), your soon-to-be ex-spouse will get 50% of the house. Go figure. It is usually not what people expect when seeking a divorce. Therefore, it is crucial to discuss with your attorney the possibility of moving your 50% interest in the home to tenants in common, which is another way to hold title to a home. This could prevent her future ex-spouse from getting her 50% interest in the house as a result of her death.
During this stressful time of divorce, thinking about death too may be the last thing you want to add. But, ignoring it can lead to unintended consequences. As in many areas of law, an attorney understands and handles complexity well. Therefore, it helps to know that an experienced attorney is just a phone call or email away to help provide guidance.