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Who Gets Your Property If You Die Before Your Divorce Is Final?

When you’re in the middle of divorce proceedings, mentally you may already see yourself as no longer married. You may have shifted your financial focus to a single lifestyle with an emphasis on your children, other family members, or a new partner.

However, your marriage still exists, legally, and that can have a serious impact on your loved ones if you pass away before your divorce is finalized. Here are some factors to consider while your divorce is in progress.

A Bifurcated Divorce Could End Your Marriage Before Your Other Divorce Terms are Settled

It can take a long time to resolve all the issues that need to be settled to complete the divorce process. If you have a business or other complex assets or are going through a contested custody battle, divorce can take well over a year to finalize. However, it is possible to put a legal end to your marriage while the other issues are still being hashed out.

You can split your divorce case into two sections. The court can adjudicate just the issue of marital status and declare that you are no longer married. This can often be accomplished much more quickly than resolving all the divorce issues that are under contention. The Family Law Court will retain jurisdiction over the other issues such as how marital property is classified and divided.

If you obtained a judgment changing the marital status but leaving the other issues under the control of the Family Law Court, and you pass away before the other issues are resolved, then your divorce case would essentially continue after your death. Instead of an attorney representing you in the negotiation over property division, debt allocation, and other issues, the attorney will be representing your personal representative acting on behalf of your estate. However, your death would usually automatically end the court’s jurisdiction over custody, child support, and alimony.

Your former spouse would no longer be the beneficiary of your will, trusts, and retirement plans (although the spouse would get a share of retirement benefits as marital property). If you and your spouse owned property together, your interests in that property would pass to your heirs or beneficiaries, although if your spouse was the beneficiary of your life insurance policies, the end of the marriage would not change that designation.

Incomplete Divorce Proceedings May Have No Impact on Your Estate

Unless the Family Law Court has already adjudicated some issues, everything else pertaining to the divorce loses effect if you pass away before proceedings are finalized. Your estate plans—or lack thereof—would operate the same way as if you were still happily married. Your share of marital property and all your separate property would be distributed to beneficiaries under your will as written, even if everything is set to go to the spouse you wanted desperately to cut ties with. If you don’t have a will, trust, or other estate plans, the California laws of intestate succession will determine who receives your property. Your share of community property would go to your spouse, and some or all of your separate property as well.

Update Your Estate Plan to Protect Your Loved Ones

If you want to protect your children or other loved ones such as a new partner, it is a good idea to create or update your beneficiary clauses and estate planning documents to the extent that the law allows while your divorce is in progress. This includes creating or changing powers of attorney to give someone other than your soon-to-be-former spouse the ability to make medical decisions on your behalf or manage your finances if you become incapacitated.

Couples often create estate plans together, and since you know you are separating your life from that of your spouse, you can go ahead and memorialize that separation in your estate plans now. The law might restrict your ability to change your life insurance beneficiary and other facets of your plan while the divorce is in progress, but talk to an attorney about taking the best available steps to protect your loved ones during and after the divorce.

Holstrom, Block & Park Can Adjust Your Estate Plans While Your Divorce is in Progress

The actions you take in one aspect of your life can and should affect other aspects of your life, and estate planning is no exception. The team at Holstrom, Block & Parke, APLC includes not only experienced divorce attorneys but also a legal team dedicated to creating the right estate plans to protect you now and in the future. For questions about divorce or estate planning, call us at 855-426-9111 or contact us online to schedule a consultation with one of our attorneys today.

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