Why Parties to a Divorce Should Take Status as Soon as Possible: The Probate Attorney’s Perspective

When navigating a divorce, one critical but often overlooked step is “taking status” — that is, ensuring the court finalizes the dissolution of marital status as soon as possible. From a probate attorney’s perspective, this is not just about ending a marriage; it’s about protecting your estate, avoiding complications for heirs, and ensuring legal clarity if one spouse passes away during the proceedings.

The Key Legal Implications of “Taking Status”

In California, divorce is a “personal action” that ends upon the death of either spouse. (Kirschner v. Dietrich (1895) 110 Cal. 502, 504.) If a spouse dies before the divorce status is finalized, the case “abates” (is canceled), and the remaining spouse inherits as a surviving spouse under community property laws. This automatic inheritance can create unintended consequences, particularly in high-stakes divorces. After the death of a party to the divorce, the court loses all power to issue new orders with respect to the status of property (changing community property to separate property). (Darter v. Magnussen (1959) 172 Cal.App.2d 714, 717; McClenny v. Superior Court (1964) 62 Cal.2d 140, 144; In re Marriage of Shayman (1973) 35 Cal.App.3d 648, 651; Estate of Mitchell (1999) 76 Cal.App.4th 1378, 1382.)

However, if the court has dissolved the marital status before one spouse’s death, the community property rights adjudicated in the divorce proceedings can still be litigated and enforced. The death of the parties locks in the status of all property as community or separate property, but where there is no surviving spouse to inherit the community property, the superior court must continue to ensure a fair division of the property. This distinction ensures that property disputes don’t simply disappear upon death, leaving the decedent’s share vulnerable to claims by the surviving spouse. Taking status early allows property disputes to be treated as contractual matters, not inheritance claims. (Darter v. Magnussen, supra, 172 Cal.App.2d 714, 719.)

Estate Planning: A Safety Net for the Unexpected

Even when status is taken, complications can arise if the deceased spouse has no estate plan. Without clear instructions, the deceased’s half of the community property and separate property may not be distributed according to their wishes. A well-crafted estate plan—through a will or trust—ensures that the decedent’s share goes to intended beneficiaries. For example, one could designate gifts to children or other heirs, bypassing the legal entanglements of intestate succession.

Most people are unaware that community property does not have to be inherited by the surviving spouse. If a person executes an estate plan giving his or her share of the community property to another person (a child or romantic partner), death during divorce will not extinguish the rights of the people who inherit under the estate plan.

Thus, if you cannot take status in your divorce, then you should update your estate plan until the divorce is concluded to ensure that your half of the property is given to someone other than your spouse.

Preventing Disputes: The Power of Proactivity

By combining the proactive step of taking status with thoughtful estate planning, divorcing spouses can significantly reduce the risk of contentious disputes. These actions not only protect your legacy but also simplify the legal process for those left behind. Additionally, dissolving marital status early can clarify property rights and safeguard them from being upended by California’s intestacy laws.

Unfortunately, I have too many cases on my desk where a party to a divorce died during the divorce and the intended heirs lose.

Conclusion: Don’t Wait to Take Status

For divorcing spouses, taking status as soon as possible is not just a procedural step—it’s a legal safeguard with profound implications for property rights and estate distribution. Working with both a divorce and probate attorney ensures a comprehensive approach, from resolving property disputes to planning for the future with an estate plan. This proactive strategy is invaluable in protecting your intentions and ensuring that your loved ones are not left grappling with legal uncertainty.

Take charge of your divorce and estate today. The sooner you act, the better equipped you’ll be to secure your assets and your legacy.