Death and Divorce

Grief research has compared divorce to the death of a family member. See article by P. Stahl.Ph.D., in ACFLS Journal, Spring 2014. Unfortunately, divorce grief can bleed into deeper areas. It can include client death. In my law practice, it was particularly disturbing to learn that a 60 year old divorce client had been diagnosed with a Stage 4 cancer. While death is something that could be a potential outcome in every case, for the overwhelming majority of clients, there is no urgency because it is not likely to occur.

In the case above, the first thing that needed to be done was to petition the Court for an early termination of marital status. This procedure allows the Court to terminate the marital status 6 months following the establishment of jurisdiction (proof of service) and reserve all other issues for later. That way if a spouse dies having been divorced, the division of property survives and can be conducted by the personal representative of the decedent’s estate. If the client is still married at death, then the divorce action abates and the other party becomes the surviving spouse of the deceased spouse’s estate. Regardless of whether or not the client is eligible for an early termination of marital status, there are estate planning issues which should be addressed.

If there is an existing living trust, it should be revoked when a divorce action is filed. Moreover, a new Will and unfunded living trust should be prepared for the client, and the client should consider whether to terminate joint tenancies. Virtually every living trust that a divorcing client has with his or her spouse will need to be revoked because on the client’s death, it will likely pass the bulk of the assets to the survivor(estranged) spouse, either outright or in trust. In all likelihood the client will not want this result, and will prefer to have his or her share of the estate go to his or her children or other beneficiaries, rather than the spouse. Because of the Automatic Temporary Restraining Orders(ATROS), written notice must be given to the other spouse and filed with the Court. Following revocation of the trust, title to the trust assets should be restored to the parties’ names; however, this rarely occurs until the divorce is settled because of conflicting claims and disputes over the characterization of property. Revocation alone, however, will be sufficient to subject trust assets to the jurisdiction of the Court in case either party dies before judgment on reserved(property issues) is entered.

If there is an existing Will, it will also likely pass the estate to the surviving spouse. If the client doesn’t have a Will, by law the surviving (estranged) spouse will inherit all of the community property and from one-third to all of the separate property depending upon the number of children. If the client has children, he or she will likely want his or her share of the estate to go to the children. If there are minor children, the client should be advised to consider including provisions to hold assets in a trust to be managed by the Trustee and used for the benefit of the children until they reach an appropriate age for distribution.

No matter what the client’s Will or Trust says, if the client holds assets in joint tenancy, they will pass to the surviving joint tenant on a client’s death. This is the result the client almost certainly will not want. The right of survivorship may be severed under the ATROS, provided you give prior written notice to the other spouse. The decision to sever is not an automatic one but one which should be considered.

Finally, the biggest problem is with retirement accounts. These accounts frequently name the estranged spouse as the beneficiary. This is a technical area but generally the surviving spouse as beneficiary designation cannot be changed unless the Court, on motion, can be persuaded to enter a temporary order designating the participant spouse’s estate as the beneficiary in case of premature death. This is not something that is ordinarily done except in cases like the one described above, where a spouse is facing sudden death.

As a Family Law Attorney, I focus on the termination of marriage by divorce. However, every client should consider estate planning issues while they are proceeding through the divorce process. For some clients, this is a very remote possibility and one which they simply do not have the energy or funds to address. For others, however, it is a much more urgent issue and one which requires a client to do some estate planning.

If you have questions regarding death and divorce, please contact our office to schedule a consultation. The Law Office of Family Law Specialist Richard E. Bawden also handles legal issues regarding adoption, annulment, collaborative divorce, child support, divorce, domestic violence, legal separation, litigation, mediation, legal separation, paternity, spousal support, pre-marital and post-marital agreements. Dial 909.792.0222 or email us at [email protected] You might also want to get more information at our website: The Law Office of Richard E. Bawden serves the Inland Empire including Riverside, San Bernardino, Rancho Cucamonga, Fontana, Redlands, Loma Linda, Mentone, Yucaipa, Beaumont, Banning and Hemet.

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