Puja Sachdev | December 1, 2021 | California Law

If the unthinkable happens and your spouse dies during a divorce, the divorce proceedings will stop. You cannot divorce a deceased person under California law. Instead of being a divorcee, you are now a surviving spouse. 

You may have been mentally prepared for the divorce. However, you may not have been prepared for becoming a widow or widower. So, what happens now that your spouse has died. How does their death impact the issues that would have been settled through your divorce proceeding?

How Does a Spouse’s Death Impact a California Divorce Proceeding?

The terms of a divorce may include property division, child custody, and domestic support. You and your spouse may have negotiated a settlement agreement before their death. You might have had a prenuptial or post-nuptial agreement that controlled the terms of the divorce.

However, the settlement agreement and marital agreement would not apply because the divorce case was dismissed. There are no issues to negotiate or litigate. 

Now that your spouse has died, you become the sole guardian for your children. You have sole legal and physical custody. You would only lose custody if a grandparent, Child Welfare Services, or another interested party proved you were an unfit parent, and the court granted custody to another person.

Domestic support is no longer an issue. You have custody of your children, so there are no child support payments to pay or receive. Spousal support is now a moot subject too.

Community property would be split equally under California’s community property laws in a divorce proceeding. However, now that your spouse has died, their interest in community property belongs to their probate estate. Therefore, you must now deal with the probate court instead of the family court regarding property matters.

In addition to your family law attorney, you may want to seek advice from an estate attorney. Depending on your spouse’s estate plan, or lack thereof, there could be a great deal of work required to settle your spouse’s affairs.

Did Your Spouse Have a Will?

If your spouse did not change their Will, you might be the primary heir. However, your spouse could have left their property to your children or another party. The terms of the Will dictate how your spouse’s property is distributed. 

If your spouse died without a Will, California’s intestate laws control who inherits your spouse’s property. As the surviving spouse, you stand to inherit a large portion of the estate. If your spouse did not have any surviving children, you would inherit the entire estate. 

However, some assets may pass outside of the estate. For example, if you and your spouse owned property jointly “with right of survivorship,” that property passes directly to you. Furthermore, if your spouse had not changed their beneficiary designation on retirement accounts and life insurance policies, you may receive those assets too.

It is essential to gather as much information as possible about your spouse’s Will and assets. Depending on the status of your divorce proceedings, your spouse may have already disclosed financial information. Locating the current Will is crucial to determine your inheritance rights. 

Can I File a Wrongful Death Lawsuit if My Spouse Dies During a Divorce?

Surviving family members may be entitled to damages when their loved one dies because of another party’s negligence or wrongdoing. Therefore, in addition to inheriting assets from your spouse, you also have the right to file a wrongful death lawsuit. 

Under California’s wrongful death statutes, close relatives may file a wrongful death claim, including surviving spouses and domestic partners. To learn more about filing a wrongful death claim, you can contact a personal injury lawyer for help with the case. 

Families may receive compensation for several types of damages for wrongful death claims, including:

  • Loss of love and affection
  • Medical costs from the time of injury through the date of death
  • Loss of financial support
  • Funeral expenses
  • Loss of consortium
  • Loss of household services

Depending on the circumstances surrounding your spouse’s death, you could be entitled to a large sum for wrongful death damages. However, if the divorce had been granted before your spouse’s death, you are not entitled to any proceeds in a wrongful death claim.