Death can create big issues in your divorce, calling the fate of marital assets into question. 

You can’t divorce someone who is dead, which means the divorce case will end. A probate case will begin instead.

The Effect of a Will

When a person dies without a will, it’s called dying “intestate.” According to California intestate law, a deceased person’s community property all passes to the surviving spouse. 

Separate property can go either to the surviving spouse or the living heirs of the deceased. If there are heirs, half the separate property goes to the spouse.

If the deceased left a will then that will shall take precedent. However, the surviving spouse will still have a right to half of the community property, but depending upon the terms of the will may be unable to claim separate property.

The Effect of Bifurcation Agreements

A bifurcation agreement legally dissolves a marriage without first deciding the major issues of the marriage, including the distribution of property. When a bifurcation agreement is in place the representative handling the estate steps in for the deceased.

The divorce court will then issue orders on the unresolved issues. This can impact issues like child support: in this case, the estate would pay the child support in place of the deceased parents.

Special Considerations for Spouses With First Marriages

If you have children from a first marriage it’s vital to get a will in place the moment you know you’re getting a divorce. If you don’t, intestate laws could give all of your community property to your spouse, leaving the children of the first marriage with nothing. 

You’ll want to be especially vigilant here in cases where you essentially have no separate property. Individuals who have been married long enough sometimes don’t have anything other than community property to distribute.

Life Insurance

The deceased spouse may have changed the beneficiary on the policy from the ex to another party, but that doesn’t mean the surviving spouse can’t claim any of that life insurance money. In cases where community property was used to set up the life insurance policy the surviving spouse can at times have a claim.

Protecting Yourself

Cases can become complicated quickly, and it’s not always easy to determine how to protect your loved ones from the unexpected. If you’re in the middle of a divorce, get help. Contact The Law Offices of John A. Bledsoe today. 

See also:

Are Senior Divorces Different?

How to Protect Your Finances in Your CA Divorce

How to Choose the Right Divorce Lawyer

CategoryDivorce
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