Death, Divorce and the Surviving Spouse

Recent case law is a trove of potential blog topics. Estate of McDaniel (2008) 161 Cal.App.4th 458 (if you're keeping score) addressed the intersection of death and divorce. The court held that the wife was not a "surviving spouse" where the husband died after the two had instituted divorce proceedings, divided their property pursuant to a stipulated judgment, but where the final termination of the marriage was not yet in effect.

Husband and wife entered into a stipulated judgment in July 2005 dividing their property and dissolving their marriage, with the final termination to become effective in October 2005. In the meantime, the couple tried to reconcile and signed, but did not file, a dismissal of the dissolution action. Husband died in a motorcycle accident in September 2005.

The court held that because the couple had separated their community property, confirmed their separate property, and accounted for and waived their marital property rights, the wife was not entitled to inherit husband's estate because she was not a surviving spouse pursuant to probate code section 78.

Estate planning is geared toward expecting the unexpected. That extends to estate planning's intersection with family law. Here, had the couple filed the dismissal of the divorce before husband's untimely death, the court would likely have held that wife was entitled to inherit the estate. As an attorney, this is obvious, but I'm sure that husband and wife's priorities were a little different.