Is an asset division required if one party dies during divorce process?

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Is an asset division required if one party dies during divorce process?

My wife and I are going through a divorce. She moved from our home in CA to NV. I still reside in CA. The divorce was proceeding slowly and I was paying support. I had already sold our home in CA and half of the proceeds went to her. She passed away Tuesday. Is it still necessary/required to have half of our assets, i.e. retirement accounts, 401K’s, bank accounts, etc. forfeited to the other party?

Asked on May 31, 2018 under Family Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If you are not divorced yet, you are still married. Therefore, ignore the "slowly proceeding" divorce. Her "estate" (what she left behind) passes by the usual rules for what happens when a spouse passes. If she had a will, her estate passes as per her will's instructions. If she had no will, it passes by "intestate succession," or the rules for who gets what when there is no will. In your state (CA), if she did not have children, you inherit everything. If she did have children (whether with you or with someone else), you get all the "community property" (everything acquired during marriage, with a few exceptions) and 1/2 her "separate" property (things she had pre-marriage, plus anything inherited by or gifted solely to her during marriage) if she had 1 child, 1/3 of her separate property if she had more than child (the children inherit what you do not).
The above is an oversimplification of a complex topic--certain assets (for example, real estate owned as "joint tenants with right of survivorship, or JTROS; bank accounts which are "transfer on death" [TOD] or "pay on death" [POD]; life insurance with a named beneficiary) pass outside of probate and ignore a will or intestate succession. For an accurate picture of your inheritance in *your* specific situation, consult with a probate attorney.


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