What Constitutes Death
The Court will likely decline to make a finding that a party has died until a death certificate has been issued by the coroner. In the meantime, the Court assumes that the party is still alive and may postpone any hearings on calendar until his or her death is confirmed.
Dissolution of Marriage
Upon official confirmation that a party has deceased, a marriage between two persons is dissolved.
Custody and Visitation
Family Code §3010(b) provides: If one parent is dead, is unable or refuses to take custody, or has abandoned the child, the other parent is entitled to custody of the child.
Although this statute looks fairly straightforward, an automatic reversal of custody may not occur. For example, one or both parents of the deceased party may apply to the probate court for a temporary guardianship of the minor child. If the temporary guardianship is granted, the family court’s jurisdiction over custody and visitation terminates pursuant to Probate Code §2205. The surviving party must file an objection to the guardianship in the probate court in an attempt to avoid losing long-term custody of the child. At the general guardianship trial, the temporary guardian will need to prove that an award of custody to the child’s living parent is detrimental to the child’s best interest. If general guardianship is awarded, the guardian will receive legal and physical custody of the minor with the living parent receiving visitation rights in the discretion of the Court.
In the alternative, the deceased party’s parent may file a request to join as a party to the dissolution case and obtain custody orders therein. Pursuant to Family Code §3040(a), parents receive custodial preference in the award of custody. However, in the court’s discretion the Court may award custody “to the person or persons in whose home the child has been living in a wholesome and stable environment, or to any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.”
Generally speaking, these issues arise more often when the custodial parent passes away because his or her relatives seek to take the place of their deceased family member.
In cases where a parent of an un-emancipated child is deceased, Family Code §3102 provides that the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child. Again, the nonparent files a motion to join as a party to the dissolution matter as a prerequisite to receiving visitation rights.
Child Support
Pursuant to Family Code Section 4007(a), the duty to pay child support ends when the payor dies. However, if the payor receives custody of the child after the death of the other parent, a modification of child support is warranted to stop the support order. This is especially important where the Department of Child Support Services is involved in collecting child support. The Department will continue to collect support until a motion is filed to terminate the order.
If a non-parent is awarded custody of the child after the death of one parent, then the surviving parent may be required to pay child support to the non-parent.
Spousal Support
Pursuant to Family Code §4337, the duty to pay spousal support ceases upon the death of one of the parties, unless otherwise agreed to by the parties in writing.
Property Division
According to Family Code §2040, California law imposes a presumption that any property acquired in joint form during marriage is community property. However, if either party dies before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption.
To illustrate how this law affects the disposition of property after death of one of the parties, assume the following facts: During marriage Husband and Wife own a family home. Wife’s will leaves her share of community property to her children. Suppose Wife files a Petition for Dissolution and later dies before dissolution is entered. How the property is titled will control who receives Wife’s share of the property.
*If titled as “Husband and Wife, as Joint Tenants,” Husband will receive Wife’s interest in the property because in a joint tenancy the surviving tenant is awarded 100% of the other tenant’s interest.
*If titled as “Husband and Wife, as Tenants in Common,” Wife’s children will receive her interest because in a tenancy in common the deceased tenant’s heirs are awarded her tenancy.
*If titled as “Husband and Wife, Community Property with Right of Survivorship”, Husband will receive 100% of Wife’s interest because of the right of survivorship.
This analysis changes after a stipulated termination of marital status with reservation of the Court’s jurisdiction over division of the community estate. If such an event had occurred here, then under the case Marriage of Hilke (1992) 4 Cal.4th 215, regardless of how the asset was titled above, the community property presumption would be applied to find that the home is community property. Because Wife left her “community property” to her children, her heirs will take her interest, and not Husband.
As shown above, the death of a party may cause many complications to a divorce case. As matrimonial attorneys, we know that assisting our clients navigate through this emotional tumult is as important as our duty of zealous advocacy. If you have any questions, contact us today.