Passing of a Spouse Prior to Judgment of Dissolution

Going through a divorce is a difficult time in and of itself. For some, this time is made even more difficult by the passing of his/her spouse during the pendency of the divorce proceedings. After losing their spouse, it is not uncommon for the surviving spouse to call his/her attorney and ask, “What do I do now?”

Pursuant to Family Code Section 310 there are three ways to dissolve a marriage:

  1. the death of one of the parties,
  2. a judgment of dissolution of marriage, or
  3. a judgment of nullity of marriage.

For those couples who choose to divorce, they seek to end their marriage by way of judgment of dissolution. So what happens when one spouse passes before a judgment for dissolution is entered? In cases where the parties are still legally married and no final judgment has been entered the marriage ends by way of death of one spouse. That means that the court where the Summons and Petition was filed loses jurisdiction over the matter and the deceased spouse’s estate is divided in probate court according to the laws of intestate succession (or, if there is a will according to the terms contained therein).

However, one caveat to this rule is where the court has bifurcated the issue of marital status and terminated marital status while both parties are still alive (note: in order to bifurcate and terminate marital status six months need have passed since the parties separated). In such a case, the court does not lose jurisdiction over the matter. Rather, the deceased spouse’s estate must appoint a representative for purposes of the family law dissolution proceedings. In that case, the court will have the ability to make orders regarding the outstanding issues in the parties’ dissolution.

Here at Mello & Pickering, LLP with our combined 28 years of experience in family law, we know how difficult it can be going through this process. We can help you navigate through the Santa Clara County divorce process while ensuring your best interests are protected.