Robert Kennedy, Jr.’s Wife Dies While Divorce Still Pending – What Should You Do to Protect Your Estate?

Robert Kennedy Jr. married his wife, Mary in 1994. After 16 years of marriage, Robert filed for divorce in May of 2010, yet in May 2012 the divorce still had not been finalized. Tragically, Mary was found dead in her home at the age of 52 on May 16, 2012 with the divorce still pending. The parties were preparing to go to trial in August on custody issues.

Since Robert and Mary were still married at the time of her death, Robert was able to take charge of the funeral arrangements over her family’s objections. If Robert won the right to Mary’s remains in court because they were still married, what else could a spouse in this situation legally be entitled to? The death of a spouse during a pending divorce raises some interesting issues with respect to one’s property.

Couples often hold property they own together Joint Tenants, so what happens to real property held in joint tenancy if one spouse dies? Joint Tenancy means that both spouses hold the whole property together and it carries with it a right of survivorship. Right of survivorship means that if either spouse dies, the surviving spouse would continue to own the entire property. This right remains during the course of a divorce unless the parties sever the joint tenancy. Severance of joint tenancies pending dissolution is necessary to preserve a spouse’s interest in the property if they should die due to the survivorship aspect. During a divorce, the parties should sever joint tenancy and hold the property as tenants in common instead. Holding property as tenants in common has no right of survivorship so either party could leave their interest in the property to an heir of their choice. When a party decides to sever the joint tenancy during divorce proceeding, they must give their spouse notice first. There are Automatic Temporary Restraining Orders that are in effect immediately upon filing for divorce. However, those restraining orders will not be violated as long as notice of the severance is filed and served on the other party. (Fam. Code §2040(b)(3).) If Robert and Mary owned property as Joint Tenants, Robert could be inheriting Mary’s interest in the property unless of course they had severed the joint tenancy prior to Mary’s death.

What happens to property devised by will and what happens when the deceased party has no will? If Mary had a will prior to the divorce that left her estate to Robert, he would receive what was left to him, unless Mary made a new will after the divorce proceedings started. It’s best to make a new will as soon as possible to exclude your spouse as your heir and leave your property to your heirs. If a person dies without a will they are said to have died intestate and their property will be disposed of under the laws of the state. When a person dies intestate before their divorce is final, the surviving spouse will inherit the deceased spouse’s one-half of the community property by right of intestate succession under Probate Code §100. This means that if Mary did not have a will, Robert would inherit all of her interest in the community property.

Who is liable to creditors for debts? Creditors hold both spouses liable for any debts as long as they are still married. It’s a good idea for a party with a pending dissolution matter to contact their creditors and inform them of the dissolution proceeding and the date of separation so they will hopefully not be responsible for debts their spouse incurs after separation. Without such notice, creditors will hold both parties responsible for debts made by either party. It was reported that Mary had a lawsuit filed against her by American Express on April 30, 2012. Mary was over $32,000 in credit card debt. If Mary accrued the debt prior to separation, Robert could be liable to pay it back. However, it is likely that her debt started accruing after the separation when she lost access to the Kennedy trust.

At Mello & Pickering, LLP we can help you navigate these issues as they arise after your dissolution proceeding is filed so you can protect your property. If you have questions about any family law issue, give us a call to set up a consultation or an in person meeting at (408) 288–7800.

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