The purpose of this article is to reveal the potential problems that can arise when one of the spouses dies during the divorce process. Yes, death is a difficult subject to broach, especially when combined with divorce. But, the harsh truth is that ignoring it doesn’t make it go away. In fact, it is likely that many of the readers of this article are often faced with the following persistent and recurring thought: “Tomorrow, yes, tomorrow, I will make my will.”

Unfortunately, many people never get their will written. And, as a result, the distribution of your estate may be contrary to your unwritten wishes. In simpler words: your coin collection, 69 Camaro, and 5 acres of land in Arizona may not be for your child. In fact, if you are in the middle of a divorce and die without a will that reflects your current wishes, your future ex-spouse could probably acquire the gifts that you wanted to give to others.

It is important to look at a few things here to lay the groundwork. First, generally, a divorce in California takes six months and a day for the couple to “legally” divorce. So, after one of the spouses files a petition with the court to initiate the divorce, the spouses are now involved in “dissolution proceedings”. This means that during these six months, and very often longer, the spouses seek help from the court. This assistance includes things like temporary spousal support payments, temporary child support payments, and even requesting that the other spouse pay attorney’s fees. All these mini-trials along the way happen before the divorce is final.

So the most important question is: “What happens if I die after the divorce process has started but before the divorce is final?” Ready for this? It is the same as dying as if you are still happily married. This truth should be a great motivator for people to confront the reality of death and the greater difficulties it can cause during divorce without proper planning.

First, if you don’t have a will, or if it was drawn up prior to the divorce proceedings, drafting a new will is an important step to help ensure that your property, such as your ’69 Camaro that you bought before marriage, is turned over to your brother , not your future ex-spouse.

Next, if you and your future ex-spouse own a home together, you and your spouse will likely take the title to the home as community property with right of survivorship or as joint tenants. If so, it is important to know the effects of having a title like this. In general, and for simplicity, it is easy if you imagine the property as if each spouse owns their own 50% of the house. And, if the spouses have title to the property in one of the two ways mentioned above, then when one of the spouses dies, the other spouse will take the other half of the house, thus becoming a 100% owner. (Of course, there are some documents to file with the court, but these presentations are a topic for another article)

So if you die before the divorce is final, generally (without discussing the complexity of the bifurcation issues), your future ex-spouse will get 50% of the house. Go figure. It is usually not what people expect when seeking a divorce. Therefore, it is crucial to discuss with your attorney the possibility of changing your 50% interest in the home to joint tenants, which is another way to maintain title to a home. This could prevent your future ex-spouse from getting your 50% stake in the house as a result of your death.

During this stressful time of divorce, thinking about death too may be the last thing you want to add. But ignoring it can have unintended consequences. As in many areas of law, an attorney understands and handles complexity well. Therefore, it is helpful to know that an experienced attorney is a phone call or email away to help provide guidance.