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First Step in the Divorce Process is Not What You’d Think

I’d venture to say that you have a higher likelihood of a “surprise” death during a divorce than at any other time. Yet, with all that added stress and turmoil, the last thing you are probably thinking of is your estate planning documents. Put another way, you are probably not thinking about what happens to your assets if you die during a divorce proceeding.

Under California law, with limited exception, estate planning documents are not nullified until a judgment of dissolution of marriage is entered. Similarly, if a party to a divorce proceeding dies intestate (without estate planning documents) prior to the entry of a judgment of dissolution, the proper procedure is to terminate the divorce proceeding and probate the spouse’s estate. The surviving spouse will “get their half” and more! By way of explanation, the surviving spouse receives all of the deceased spouse’s assets if the deceased spouse has no surviving children, ½ if there is one surviving child, and 1/3 if there are two surviving children.

I find this crazy! The law should be changed. In my view, the “triggering date” should be the date the petition to start the divorce proceeding is filed – not the entry of judgment date. Sure, there is the occasional client that wants a former spouse to inherit from them. But all will agree, that is not normal. When that petition is filed, at least one spouse is alleging irreconcilable differences. At that moment, they probably don’t want their spouse to inherit from them. I’ll go out on another limb and venture to say that, in the vast majority of cases, the relationship between the spouses devolves over the course of the divorce proceeding. Family law attorneys are getting better at mediating and encouraging resolution, but (unfortunately) the system encourages family law attorneys to foster animosity. Write your legislator… but until the law is changed, put the word out.

Again, this is the last thing a spouse is likely to think about, but revising estate planning documents should be the first step after a divorce proceeding is started. If the spouse doesn’t have estate planning documents, they need them! In general, probate is a long and costly process that should be avoided; however, in most cases where one dies before preparing an estate plan that would avoid probate, their assets still go to their loved ones because of the laws of intestate succession. Not so during divorce! Those assets will go to your soon-to-be “ex.”