A marriage can only end in two ways – divorce or death. And in some cases, a death can occur during the divorce process causing new issues to arise. Therefore, it is important to review any estate planning documents such as any prenuptial agreements, wills or trust documents before you file for divorce because of the effect it may have on the disposition of your case. For example, does the estate plan address the potential of a marriage ending before the death of one of the parties? If so, does the plan divide and direct assets in the event of a divorce? Another consideration is does the estate plan change the character of property and inadvertently transmute property from separate property of one spouse to community property or vise-versa. All of these scenarios may impact the outcome of your case and should be carefully considered.


It is also important to keep in mind that automatic temporary restraining orders (“ATROs”), include orders prohibiting the parties from creating or modifying a nonprobate transfer in a manner that affects the disposition of property and take effect against the petitioner when the petition is filed and summons is issued and against the respondent when served with the petition. However, there is an exception allowed by recording a joint tenancy severance with right of survivorship so long as notice is given to the other party. Therefore you may want to revise your estate plan prior to filing to dissolve your marriage.


Next, the death of a spouse during a pending divorce will also cause tension over what court retains power to decide your case – the Family Court or Probate Court. If one spouse dies before any orders are issued, then the family law matter abates and will proceed through probate court. However, if one spouse dies after a matter is adjudicated but before the court can enter the written Judgment, then the family court is likely to retain jurisdiction. Likewise, if one spouse dies after a judgment terminating marital status and reserving jurisdiction over all other issues, then the family court is likely to dispose of the remaining issues.


Finally, spousal support obligations terminate upon death as to child custody orders but child support orders are enforceable against a decedent’s estate or living trust assets. However, no authority exists to impose liability if no child support exists before death.


Crossover issues in family law and probate law are complicated and factually driven. Contact the Law Office of Shannon R. Loeser if you need assistance with your legal matter.


Shannon R. Loeser, Esq.
Certified Family Law Specialist
28202 Cabot Road, Suite 520
Laguna Niguel, CA 92677
Tel: (949) 392-5050