My Husband and I decided not to go through a divorce and then he died. His parents are claiming half of his estate. What do I do?

Full question:

My husband and I decided not to go through with our divorce so we didn't file the papers. A couple of weeks later he passed away. Now his parents want half of his estate. Is this the law?

• Category: Wills and Estates
• Subcategory: Divorce
• Date: 04/07/2025
• State: California

Answer:

This is a good question and many people do not know what happens to the estate of a spouse if they die while a divorce action is pending, completed, or even in process but not filed. The laws of the States are not consistent about what happens to the estate of a deceased spouse of even ex-spouse in these situations. Some States hold that unless the Will of the deceased spouse is changed, provisions contained in the Will for an ex-spouse can remain valid. Other States even change the laws of decent and distribution if the parties are living separate at the time of the death of a spouse. 

In California, the Court opinion of Bevelle v. Bank of America], 80 Cal. App. 2d 333 (1947) held that even if a divorce is pending the Will of a deceased spouse leaving property to a spouse remains valid. Intestate laws may also still apply.

Therefore, unless the dissolution of the marriage is has been ordered, the spouse can still inherit under the laws of the State of California. On the other hand, if the dissolution of marriage has been finalized, the ex-spouse is not even entitled to inherit under the Will of former spouse in California.

However, in your case the question is also whether he has a Will or whether he died intestate (without a will). If he died without a Will then the intestate laws of the State of California control. Those laws specify what property goes to the spouse and what property, if any, goes to other relatives.  By reading the statutes below from the California Probate Code, you will find that you are entitled to part of the estate and other relatives are entitled to part. What relatives depend on who his relatives are.  Please review these laws.

6401.  (a) As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100.

   (b) As to quasi-community property, the intestate share of the surviving spouse is the one-half of the quasi-community property that belongs to the decedent under Section 101.

   (c) As to separate property, the intestate share of the surviving spouse is as follows:

   (1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.
   (2) One-half of the intestate estate in the following cases:

   (A) Where the decedent leaves only one child or the issue of one deceased child.
   (B) Where the decedent leaves no issue, but leaves a parent or parents or their issue or the issue of either of them.

   (3) One-third of the intestate estate in the following cases:

   (A) Where the decedent leaves more than one child.
   (B) Where the decedent leaves one child and the issue of one or more deceased children.
   (C) Where the decedent leaves issue of two or more deceased children.

 

6402.  Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse, under Section 6401, or the entire intestate estate if there is no surviving spouse, passes as follows:

   (a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

   (b) If there is no surviving issue, to the decedent's parent or parents equally.

   (c) If there is no surviving issue or parent, to the issue of the parents or either of them, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

   (d) If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, to the grandparent or grandparents equally, or to the issue of those grandparents if there is no surviving grandparent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

   (e) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by the issue of a predeceased spouse, to that issue, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

   (f) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, or issue of a predeceased spouse, but the decedent is survived by next of kin, to the next of kin in equal degree, but where there are two or more collateral kindred in equal degree who claim through different ancestors, those who claim through the nearest ancestor are preferred to those claiming through an ancestor more remote.

   (g) If there is no surviving next of kin of the decedent and no surviving issue of a predeceased spouse of the decedent, but the decedent is survived by the parents of a predeceased spouse or the issue of those parents, to the parent or parents equally, or to the issue of those parents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

Other information about divorce, spouses and death is below.  It may not be relevant to your situation but is presented here for informational purposes.

One issue that has caused much confusion if where the Courts in California bifurcate the dissolution (ending the marriage) from property, child support and other matters. In this case is one spouse dies the Probate Court and the family Court both have matters of property to decide. This can be a complex situation.

Another issue parties face in California is the Automatic Temporary Restraining Order which prohibits them from taking certain action after a Petition for Dissolution of Marriage has been files. However, you can still make, revoke and change your Will before the dissolution is final.  You can also sever Joint tenancies with rights of survivorship provided that you give notice of your intent to do so.  If this is not done and you die before the dissolution is complete, your spouse will received the property as a survivor to the joint tenancy.

Section 6122 of the Family Law Code provides that the Will of a divorced person's provisions for an ex-spouse are not valid:

6122.  (a) Unless the will expressly provides otherwise, if after executing a will the testator's marriage is dissolved or annulled, the dissolution or annulment revokes all of the following:
   (1) Any disposition or appointment of property made by the will to the former spouse.
   (2) Any provision of the will conferring a general or special power of appointment on the former spouse.
   (3) Any provision of the will nominating the former spouse as executor, trustee, conservator, or guardian.
   (b) If any disposition or other provision of a will is revoked solely by this section, it is revived by the testator's remarriage to the former spouse.
   (c) In case of revocation by dissolution or annulment:

   (1) Property prevented from passing to a former spouse because of the revocation passes as if the former spouse failed to survive the
testator.
   (2) Other provisions of the will conferring some power or office on the former spouse shall be interpreted as if the former spouse
failed to survive the testator.

   (d) For purposes of this section, dissolution or annulment means any dissolution or annulment which would exclude the spouse as a surviving spouse within the meaning of Section 78. A decree of legal separation which does not terminate the status of husband and wife is not a dissolution for purposes of this section.
   (e) Except as provided in Section 6122.1, no change of circumstances other than as described in this section revokes a will.
   (f) Subdivisions (a) to (d), inclusive, do not apply to any case where the final judgment of dissolution or annulment of marriage occurs before January 1, 1985. That case is governed by the law in effect prior to January 1, 1985.

The California Probate Code also defines who is considered a surviving spouse and excluded former spouses.

78.  "Surviving spouse" does not include any of the following:

   (a) A person whose marriage to the decedent has been dissolved or annulled, unless, by virtue of a subsequent marriage, the person is
married to the decedent at the time of death.

   (b) A person who obtains or consents to a final decree or judgment of dissolution of marriage from the decedent or a final decree or judgment of annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they (1) subsequently participate in a marriage ceremony purporting to marry each to the other or (2) subsequently live together as husband and wife.

   (c) A person who, following a decree or judgment of dissolution or annulment of marriage obtained by the decedent, participates in a marriage ceremony with a third person.
   (d) A person who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.