What Happens if My Spouse Dies Before Our Divorce Is Finalized?


California has a six month waiting period for couples seeking a Pasadena divorce. The waiting period is intended to allow for the possibility of reconciliation, but it can sometimes have another entirely different effect.

What Happens If a Spouse Dies in the Middle of Divorce?

If your spouse passes away after you've filed for divorce, but before the final judgment is entered by the court, the case is thrown out. You can divorce your spouse without his or her consent, but you can't obtain a divorce from someone who is deceased. You will be treated as legally married when the estate is distributed.

Your spouse's estate is handled according to California's intestate laws if your spouse died without a will. If your spouse made a will, the estate would be handled according to the will.

When a person dies intestate in California, all of the person's community property goes to the surviving spouse. Community property is defined as income earned during marriage and the assets purchased with income earned during the marriage. The surviving spouse may need to file a spousal petition to establish ownership of community property. Separate property is awarded entirely to the surviving spouse if the deceased has no living children, parents, brothers, sisters, or children of a deceased brother or sister. If the deceased spouse has one heir that falls into these categories, the surviving spouse receives half of the separate property. If there are two or more heirs, the surviving spouse receives one-third of the separate property.

If the deceased spouse left a will, it must be followed. Although it's not common, it's technically possible for a person to leave a will that disinherits their spouse. In a community property state such as California, a disinherited spouse is legally entitled to receive their half of the community property. However, the deceased spouse can give their half of the community property and all of their separate property to anyone they choose.

How Can We Help?

Please call our office at (626) 683-8113 or email us at info@PasadenaLawOffice.com if you have questions about what happens if your spouse passes away before your divorce has been finalized. Our team of skilled Pasadena family law attorneys can explain in greater detail how the estate will be handled.