Most people enter a divorce expecting the case to end with a judgment. Occasionally, however, one spouse dies before the divorce is finalized.

When that happens, the timing of the death can have significant consequences. A spouse’s death before marital status has been terminated is very different from a death occurring after the court has already entered a judgment terminating the marriage while reserving other issues for later determination.

What if a Spouse Dies Before the Divorce Is Final?

As a general rule, the death of either spouse before a judgment dissolving the marriage is entered ends, or abates, the dissolution action.

The reason is straightforward: a divorce proceeding exists to terminate the marital relationship. If one spouse dies while the parties remain legally married, there is no longer a marriage for the divorce court to dissolve.

However, the consequences can extend beyond marital status.

Property ownership becomes particularly important because assets may pass differently depending on how they are titled.

Why Can Joint Tenancy Become Important?

Joint tenancy includes a right of survivorship.

The source materials explain that when a spouse dies while a dissolution is pending but before a judgment of dissolution has been entered, property held in joint tenancy may pass by operation of law to the surviving spouse.

This can create an outcome very different from what might have occurred if the property had been divided through the divorce.

California law does allow a spouse holding real property with the other spouse in joint tenancy to sever that joint tenancy during the divorce under specified procedures. The source materials explain that doing so does not necessarily violate the ATROs when the required notice is filed and served.

The rules are technical, so the form of title and status of the divorce can become especially important when survivorship rights are a concern.

What if Marital Status Was Already Terminated?

Sometimes a California court terminates the parties’ marital status before resolving every other issue in the divorce. This is commonly referred to as bifurcating marital status.

If one former spouse dies after a judgment terminating the marriage has already been entered, the result is different.

The source materials explain that the death does not necessarily deprive the family court of jurisdiction it previously reserved to determine unresolved property rights.

As a result, unresolved property matters may still need to be addressed even though one former spouse has died.

Divorce and Estate Planning Issues Can Overlap

A pending divorce can create consequences that extend beyond ordinary property division.

Joint tenancy, survivorship rights, nonprobate transfers, and the timing of a judgment terminating marital status may all become important if a spouse dies before every issue in the divorce has been resolved.

Reviewing how major assets are titled can therefore be an important part of understanding the financial consequences of a pending California divorce.