The facts of this case are interesting and tragic at the same time. Troy and Marie McDaniel were married in 2002. Unfortunately their relationship was volatile and dysfunctional due to the fact that Troy had a habit of abusing alcohol and losing his temper. It appears from the opinion that Marie filed for divorce following a domestic violence incident, which led to Marie obtaining a restraining order and Troy getting arrested.

After Troy was charged with committing domestic violence against Marie, she filed her Petition for divorce. Troy filed his Response in April, 2005 and the parties began work on a Marital Settlement Agreement. Troy and Marie signed Interspousal Transfer deeds to one another; concerning two properties they held in joint title. In addition, they signed a Stipulated Judgment of Dissolution that contained provisions to divide their community property and debt, waivers of spousal support, and waivers of their right to appeal.

The Judgment of Dissolution was filed with the court in June, 2005, and the family court promptly entered the judgment. The judgment provided that the parties' marriage would not be dissolved until October, 2005, which was six months from the date that Troy filed his Response (based on the cooling off period written into our divorce law).

In spite of the fact that Troy and Marie signed and submitted their Judgment of Dissolution, they were attempting to reconcile their marriage. The parties attended counseling and Marie accompanied Troy while he went to alcohol anonymous meetings. Troy and Marie also signed an agreement where Marie agreed to request that her restraining order against Troy be quashed and they agreed that would continue their marriage with love and respect, and that they would keep their divorce open but acknowledged that they could dismiss the action at anytime before October. Troy and Marie also signed a judicial counsel form, requesting the dismissal of the divorce, but they held off on filing it. According to Marie, they decided not to file the request until Troy made a court appearance concerning the domestic violence charges filed against him.

Based on the facts as presented in the opinion, there is no question that Troy and Marie were attempting to reconcile their marriage. Sadly, however, Troy died in a motorcycle accident in September, 2005. Troy was intestate at the time he died, meaning he had not prepared a will or trust concerning the distribution of his estate at the time of his death.

Probate Court's Findings

Since Troy died Intestate, his estate had to be distributed according to the probate code, in probate court. In probate court, Troy's mother filed a petition for entitlement of distributions, claiming that she and Troy's father were entitled to Troy's estate. Marie then filed an opposition, arguing she was entitled to Troy's estate as the surviving spouse because the dissolution was not final.

Marie lost in probate court. The probate court judge determined that Marie was not a "surviving spouse," per Probate Code, Section 78, subsection (d), which provides that:

"A person who was a party to a valid proceeding that ended in an order terminating all marital property rights does not qualify as a surviving spouse."

Marie filed an appeal, and argued to the appellate court that per Family Code, Section 2339, she was a surviving spouse since she was still married at the time Troy died. Family Code Section 2339 provides:

"A dissolution judgment does not terminate marital status until earlier of six months after date of service or six months after filing of Response."

Unfortunately for Marie, the Court of Appeal affirmed the probate court's ruling that she was not a surviving spouse. The Court held that even though Marie was technically married, she was not a surviving spouse per Probate Code, Section 78, subsection (d), based on the fact that the Judgment filed and entered in their case divided property and debt, waived spousal support, and waived the right to appeal. In rendering the decision, the Court cited the Estate of Lahey (1999) 76 CA4th 1056, where the parties had been legally separated at the time of the husband's death, and the wife was determined to not be a surviving spouse based on the terms of the Judgment of Legal Separation.

One of the important lessons from this case is that parties should consider getting wills or possibly modifying their wills, during the dissolution of their marriage, which is permissible in California. Parties to dissolution should also consider changing the way in which they hold joint title with their spouse during a divorce. In the instant case, we will never know if Troy would have wanted Marie to have all or a part of his estate, especially since the parties were attempting to reconcile their marriage at the time of his death.

When I give advice to my clients I never tell them how to run their lives or make decisions for them concerning their personal affairs. I believe it would be improper as an attorney to tell my client that he or she should get a will during the pendency of a divorce, because it is a highly personal decision. However, it is important that all of my clients understand the possible consequences of not having a will. After reading this article, I hope you have a better understanding of the consequences as not having a will during the process of a divorce. If not, be sure to speak to a competent family law attorney concerning your rights.

Written by Donald P. Schweitzer