Death Of A Party During A Divorce

When a couple separate and one or the other files for a dissolution of marriage, (divorce), the couple are in effect separate at that point. While a couple may be separated, the marital status is still alive until there is a judgment of dissolution of marriage or one of the parties dies. In this paper, I will address the issue of where there is a divorce pending in a California Court and one party dies before judgment.

A marriage may be legally dissolved in California, restoring spouses to "single" status (Ca Fam § 2300), only by (a) the death of one of the parties; (b) a judgment of marriage dissolution; or (c) a judgment of nullity of marriage. [Ca Fam § 310; see Jurcoane v. Super.Ct. (People), supra, 93 Cal.App.4th at 896-900, 113 Cal.Rptr.2d at 491-494--marital testimonial privileges (Ca Evid §§ 970-973) applied despite no "viable" marriage (parties had no contact for 17 years) where spouses had never divorced]

When either party dies their death dissolves their marriage or domestic partnership as a matter of law. [Ca Fam § 310(a); see also Ca Fam §§ 298.5(c), 299.3(a)] Consequently, if a party dies after a dissolution of marriage or domestic partnership or a legal separation is filed but before there is a entry of judgment terminating their marital or domestic partnership status; this will abate the proceeding and the court will lose all further jurisdiction with respect to marital/domestic partnership status, as well as all other as yet un-adjudicated issues raised by the pleadings. This includes property rights, support, custody, attorney fees and costs. [Marriage of Shayman (1973) 35 Cal.App.3d 648, 651, 111 Cal.Rptr. 11, 13; see Estate of Blair (1988) 199 Cal.App.3d 161, 166-167, 244 Cal.Rptr. 627, 630--family court's jurisdiction to divide spouses' joint tenancy property as presumptive community property abated by spouse's intervening death before marital status judgment]

However, where marital status has been bifurcated (decided separately from property, child custody and support issues, or spousal support) the proper procedure is to substitute the personal representative of the deceased party's estate or, if none, the decedent's successor in interest, as a party to the still-pending action (Ca Civ Pro §§ 377.31, 377.32, 377.41). Once this is done, the court will have the ability to issue orders as to the reserved issues. [Marriage of Hilke (1992) 4 Cal.4th 215, 220, 14 Cal.Rptr.2d 371, 374-375--spouse's death after bifurcated disso judgment does not abate family court's jurisdiction to decide reserved property issues under Ca Fam CP principles; see Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151, 62 Cal.Rptr.2d 466, 474-475 (citing text)--Wife's post-judgment child support modification action properly continued after her death through her executors and trustees of trust set up to care for her disabled adult son]

In short, if a party dies before entry of any judgment, then the court no longer has jurisdiction to continue with the dissolution of marriage, dissolution of domestic partnership, or legal separation. At that time the property procedure would be to dismiss the action and proceed with a probate of the estate of the souse who died.