Posted June 22, 2018 in Family Law by Michael Lonich.

Life is unpredictable and sometimes one of the parties dies before the final judgment is made in a divorce case. Naturally, the salient question is: “How will property be divided when one spouse dies during the divorce?”

Assuming the death of the spouse was not criminally expedited by the other, the answer to that question hinges on whether the parties obtained a bifurcation of marital status. A party seeking bifurcation of marital status is essentially asking the court to separate or “bifurcate” the issue of marital status from the rest of the other issues such as property division, custody, and spousal/child support. Because a typical divorce can take over a year and a half to finalize, a bifurcation might be desirable when one party wants to terminate their marital status early and be pronounced single again.

The termination of marital status can affect the division of property in two ways. On one hand, if a party dies after their marital status is terminated, then the family court maintains jurisdiction over the property and the decedent’s personal representative continues to represent the estate’s interests.  The community property presumption applies so that property held in joint tenancy will be divided between the surviving spouse and the estate of the deceased spouse. The surviving spouse will have no right of survivorship. In the other scenario, if a party dies before the marital status is dissolved, then the family court loses jurisdiction of the property division and the case is moved to the probate court for further adjudication. Unlike the first scenario, the community property presumption does not apply meaning that property held in joint tenancy will pass, by right of survivorship, to the surviving spouse. (Estate of Mitchell (1999) 76 Cal.App.4th 1378,1386.) These two vast differences illustrate why dissolving marital status and severing joint tenancies can be critical in protecting a litigant’s property interest.

A distinctive feature of joint tenancy, as opposed to other interests in land, is the right of survivorship. This means that when one joint tenant dies, their interests vests automatically to the surviving joint tenant. When a party severs the joint tenancy, the parties will no longer hold title as joint tenants, but rather as tenants in common thereby extinguishing the right of survivorship. This alternative form of property ownership means that each party has a distinct, separate ownership share in the property thus allowing for a party to bequeath (transfer via will) his or her property interest to another person other than the surviving spouse if he or she so chooses. A joint tenant may sever a joint tenancy in real property unilaterally by: (1) executing and delivering a deed to a third person, (2) executing a deed to him or herself, (3) executing a written declaration of severance, or (4) executing any other written instrument evidencing an intent to sever. (Civ. Code, § 683.2, subd. (a); Mitchell, supra, 76 Cal.App.4th at p. 1385.) The simplest of the options is executing a written declaration of severance and recording it. These written instruments must be recorded before the party dies for it to become effective.

Another important consideration to protect one’s property interest in the event of an untimely death is to create a new will. Although the California Family Law Summons contains automatic restraining orders (“ATROS”), the ATROS do not prevent either party from creating a new will. The new will enables a party to decide an alternate inheritance plan excluding a former spouse. It is likewise important to destroy the old will.

If you are seeking information or counsel regarding estate planning or protecting your property during divorce, please contact one of the experienced attorneys at Lonich Patton Erlich Policastri – we offer free half-hour consultations. We also offer free simple wills to all our family law clients during the process of their divorce.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

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