Dying Before the Divorce is Final

The purpose of this week’s article is to reveal the potential problems that can arise, without the proper planning, when one spouse dies during the divorce process. Yes, death is a difficult topic to address, especially when coupled with divorce. But, the hard truth is that ignoring it does not make it go away. In fact, it’s likely that so many of this article’s readers are often confronted with the following recurring, nagging thought: “Tomorrow, yes tomorrow, I’ll put my will together.” Sadly, many people never get around to having their will drafted. And, as a result, the distribution of their estate may be averse to their unwritten wishes. In simpler words: Your coin collection, 69’ Camaro, and 5 acres of land in Arizona may not go to your son. In fact, if you are in the middle of a divorce, and you die without a will reflecting your current wishes, your soon-to-be ex-spouse could likely acquire the gifts you wanted to give to others.

It’s important to look at a few things here to set the groundwork. First, generally, a divorce in California takes six months and day for the couple to be “legally” divorced. So, after one spouse files a petition with the court to initiate the divorce, the spouses are now involved in a “dissolution proceeding.” This means that during these six months, and very often longer, the spouses are seeking assistance from the court. This assistance includes such things as temporary spousal support payments, temporary child support payments, and even requesting that the other spouse pay for attorney fees. All these mini-trials along the way occur before the divorce becomes final.

So, the salient question is—“What happens if I die after the divorce proceeding has begun but before the divorce is final?” Ready for this? Generally, it’s the same as dying like you are still happily married. This truth should be a great motivator for people to confront the reality of death and the increased hardship it can cause during divorce without the proper planning.

First, if you don’t have a will, or you had your will drafted before the divorce proceeding, visiting an attorney’s office to help you draft a new will is an important step to help ensure that your property, like your 69’ Camaro that you purchased before the marriage, will be given to your brother, not your soon-to-be ex-spouse.

Next, if you and your soon-to-be ex-spouse own a home together, it is likely that you and your spouse took title to the home as either community property with right of survivorship or as joint tenants. If so, it’s important to know the effects of holding title like this. Generally, and to keep this simple, it’s easy if you picture ownership as each spouse owning his/her own 50% of the house. And, if the spouses hold title in one of the two forms mentioned above, then when one spouse dies, the other spouse will take the other half of the house, thus becoming 100% owner. (Of course, there are a few papers to file with the court, but these filings are a topic for another article).

So, if you die before the divorce is final, generally, (without discussing the complexity of bifurcation issues), your soon-to-be ex-spouse may take your 50% of the home. Go figure. Usually not what people expect when seeking a divorce. So, it’s crucial to discuss with your attorney the possibility of changing your 50% interest in the home to tenants in common, which is another way to hold title to a home. This could prevent your soon-to-be ex-spouse from getting your 50% interest in the home as a result of your death.

In short, working with your divorce attorney as well as an estate planning attorney can protect many of your interests during the divorce. And, because these issues are complex, your attorney can help provide the proper guidance, like, in addition to helping you draft a new will, counsel you about how to deal with your 401(k) and IRA beneficiaries during the divorce proceedings. To proceed without an attorney in these complex areas can result in troublesome situations to say the least. So, during this stressful time of divorce, thinking about death as well may be the last thing you want to add. But, before you get too deep into this alone, please know that an experienced family law attorney, especially one whose firm also practices estate planning, is a phone call away to help guide you through this difficult time of dissolving the marriage.

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