Posted by Gurjit Srai In Divorce July 5, 2019 0 Comment

A divorce can be stressful in and of itself. But it can get even more stressful and emotionally driven if your spouse dies before your divorces is finalized. You may have many questions, such as will the divorce continue; what happens to your marital assets; what happens to your communal debts; and do you have the right to file an injury lawsuit? These are tough but important questions. It is important that you understand your legal rights and obligations if your spouse dies before you are able to finalize your divorce.

While only an experienced Central Valley divorce attorney can best answer your questions, this article can provide some insight as to what happens if your spouse dies when you are in the middle of a divorce.

Divorce Proceeds Stop When Your Spouse Dies

It takes two people to get divorced. So, if your spouse died before a court has finalized your divorce, the process will terminate. This is true even if you had negotiated some of the terms of our divorce. These terms are not enforceable until a judge has signed off and issued the Notice of Entry of Judgment. Until then, you will not be a divorcee. Instead, you will be considered a widow or widower.

The Impact of Death on the Terms of a Divorce

If the divorce process stops when your spouse dies, what does that mean for the allocation of your property, child custody, and financial obligations?

  • Allocation of property: If your spouse dies before your divorce is final, you will most likely assume ownership of all community property. Unless your spouse had a will, you may even inherit all of your spouse’s separate property.
  • Marital debts: You may become solely responsible for any marital debts you and your spouse incurred during the marriage. In other words, if your name is on a deed or contract, you will have to satisfy the terms.
  • Child custody: As your children’s surviving parent, you will assume sole physical and legal custody. However, under California law, grandparents do have the right to petition a court to ask for visitation rights or even seek custody if they believe you are not fit to care for your child.

Filing a Wrongful Death Lawsuit If Your Spouse Dies During Divorce

If your spouse was killed in an accident that was not his or her fault, as a spouse you have the right to file a wrongful death lawsuit to recover compensation. However, do you forfeit this right if you were in the middle of a divorce when your spouse died?

If your spouse died before the court finalized your divorce, you are still considered a current spouse. This means there is nothing standing between you and a wrongful death lawsuit. However, if your divorce had been finalized, a wrongful death claim would most likely only be recognized if it was brought by any children you shared.

Call an Experienced Central Valley Divorce Attorney

If you are going through a divorce or planning to file for divorce, it is important that you have a knowledgeable attorney fighting for your rights. For more information or to schedule a complimentary consultation with a Central Valley divorce attorney, please call Gurjit Srai (209) 323-5558 or (559) 314-2796, or complete our online form.