There is a saying by Benjamin Franklin that the only two things that are inevitable in this world are “death and taxes.” I don’t know if this saying is clever or morbid, but it is very true. In a family law context death does not come up often, but when it does, it is important to have a qualified family law attorney by your side to help you navigate the murky waters.

The focus of this blog is to address some of the potential consequences of an untimely death in connection with your divorce case. I will address the most common scenarios for the surviving party and how the court deals with them.

Death during the pendency of our case:

One of the fundamental requirements for a divorce action is to have a valid marriage that the parties are seeking to dissolve. Family Code §310 states that a marriage can be dissolved by one of the following:

(a) The death of one of the parties.

(b) A judgment of dissolution of marriage.

(c) A judgment of nullity of marriage.

That means the death of a party during the pendency of a proceeding abates the Family Courts jurisdiction to adjudicate a marital dissolution case. Once one of the parties dies, the marriage is dissolved as a matter of law, and the Family Court no longer has jurisdiction to resolve any of the issues in the case.   That is because death terminates the Family Court’s jurisdiction to award spousal support and transfers the jurisdiction to resolve the property issues to the Probate Court. (Child support is different, since the maintenance of a child can be requested from a party’s estate or from trust via the Trustee. If there was an insurance policy in place as security for child support that will generally satisfy the deceased party’s obligation for support of his/her children.)

It is important to point out that this does not terminate property rights (e.g. award of ½ of community property); it only means that the Family Court will no longer be responsible for making the decisions. These decisions will be made by the Probate Court. There are issues related to reimbursements and attorney fees (that are very complicated) that can be affected by the death of a party, so it is important to discuss you case with your family law attorney and to consult probate counsel if necessary.

Death after trial, but before Judgment has been entered:

In this scenario, you and your spouse have taken your case to trial and resolved all aspects of your case. Before the Judgment can be finalized and entered by the court, one party dies.

In this scenario, but for the death of one of the parties, the entire action would have been resolved by way of a Judgment.  In this scenario, the court may enter the Judgment pursuant to Code of Civil Procedure §669. The idea is that the decisions were already made; the only piece missing was the drafting of the written Judgment. That can be completed after the death of one of the parties.

Death after bifurcation of marital status:

In some Family Law actions, the parties may agree to bifurcate the issue of marital status and enter a Judgment dissolving their marriage. This agreement requires the parties to enter an agreement reserving the court’s jurisdiction to enter a Judgment on all remaining issues.   In such a case, the death of either party will not abate the court’s jurisdiction to resolve the property issues in a case because the parties’ specifically reserved in the Family Court the right to do so.

In this scenario the executor of the deceased party’s estate would step into that party’s shoes as the party in interest in the family law case. This would give the executor the right and authority to make strategic decisions in a case, hire or fire attorneys or experts, and present the matter at hearing or trial. There is an unanswered question whether the specific reservation of jurisdiction to the Family Court to decide issues post death of a party without a bifurcation and termination of status would be effective. There are good arguments both ways, but my bet is the court would find such an agreement contrary to the current state of the law and therefore void as a matter of law.

If you are faced with a case where there is a high likelihood that one of the parties to a family law dissolution action may die before the matter is completed, it is worth discussing a bifurcation of status. It will depend on a number of factors that you should discuss with your family law attorney.

Dealing with the death of a party is an emotional issue by its self. It is only made that more difficult when you must navigate the many converging probate and family law issues you are now presented with. That is why it is important to discuss your rights and options with a qualified Family Law attorney.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding how the death of a party may impact your case. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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