Pursuant to Family Code Section 310(a) a marriage is dissolved by the death of one party. Additionally, one party’s death divests the Court of all further jurisdiction with respect to all unajudicated issues raised by the pleadings including child custody, child visitation, child support, property rights and attorney fees and costs. Marriage of Shayman (1973).
Regarding child custody, if one parent dies, the other parent is entitled to custody of the child. Family CodeSection 3010.
The right to reimbursement for separate property contributions to community property pursuant to Family Code Section 2640(b) does not survive the death of a spouse. For example, if one spouse used $50,000 of his/her separate funds as a down payment on real property purchased during marriage, and that spouse dies before entry of Judgment, the decedent’s estate does not have a claim to reimbursement absent an agreement. Estate of Blair, (1988) 199 Cal. App.3d 161. There is, however, an exception under Probate Code Section 5305 for tracing bank accounts to overcome the presumption of community property in Probate Court.
The Court does retain jurisdiction after the death of one spouse to adjudicate property issues raised in litigation pending before the death. This includes an action for nullity of marriage raised in litigation pending before the death of a spouse. Marriage of Goldberg (1994). In Goldberg, husband and wife married when husband was 90 years old. After four months, husband moved to a retirement center and established a separate residence. Two months later, husband filed for a nullity of the marriage. Husband died pending trial on the issue of nullity. The. Court found that husband’s nullity cause of action survived his death, and Public Administrator be allowed to carry on decedent’s action for nullity of marriage to its conclusion. The determination of whether a marriage ever existed between decedent and his wife will determine whether she is or is not entitled to inherit one-half of decedent’s estate.
The Court retains jurisdiction to enforce rights adjudicated prior to death of a party. Marriage of Lisi (1995) involved an order for attorney’s fees for minor’s counsel, but reserved on the amount of fees to be determined at trial and to be paid from the sale of the family residence. Husband was shot and killed by Wife’s mother pending trial. Minor’s counsel subsequently sought an order fixing the amount of fees. Wife opposed the motion claiming that the cause of action abated at husband’s death. Over Wife’s objection, the Court determined the amount of attorney’s fees to be fixed at $32,000 to be equally shared by wife and husband’s estate. On appeal, the Court acknowledged that the death of a spouse before an Order dissolving the marriage deprives the Court of jurisdiction to make further orders concerning property rights, spousal support and attorney’s fees. However, in this case an order was made prior to husband’s death. The Court retained the right to enforce rights adjudicated prior to death of a party.
Lastly, if a party dies after trial and submission of the case to a judge, and before judgment, the court may render Judgment. Code Civ. Proc. Section 669.